Published on March 20, 2009
Execution
Copy
NEOGENOMICS,
INC.
SUBSCRIPTION
AGREEMENT
This
Subscription Agreement (the “Agreement”) is between NeoGenomics, Inc., a Nevada
corporation (the “Company”), and Douglas M. VanOort Living Trust, a trust whose
address is set forth on the signature block hereto (the
“Subscriber”).
WHEREAS,
the Company recently hired the beneficiary of the Subscriber as the
Executive Chairman and Interim CEO of the Company and desires to allow the
Subscriber to purchase shares of common stock, par value $0.001 per share (the
“Common Stock”), of the Company in an exempt, limited private offering under
Rule 506 of Regulation D (“Reg. D”) promulgated under the Securities Act of
1933, as amended (the “Securities Act”), on the terms and conditions hereinafter
set forth, and the Subscriber desires to acquire the number of shares of the
Common Stock as specifically set forth on the signature page
hereof;
NOW,
THEREFORE, for and in consideration of the agreements hereinafter set forth, the
parties agree as follows:
1. Subscription For
Shares. Subject to the terms and conditions hereinafter set
forth, the Subscriber hereby subscribes for and agrees to purchase from the
Company such number of shares of Common Stock as set forth upon the signature
page hereof (the “Subscription Shares”) at a price payable in cash equal to
$0.80 per Subscription Share, and the Company agrees to sell and issue such
Subscription Shares to the Subscriber for such purchase
price. This Agreement shall be effective on the later of the
date of (i) acceptance by the Company or (ii) the receipt by the Company of
payment in full for the Subscription Shares (the “Effective
Date”). The certificate for the Subscription Shares shall be
delivered by the Company within five days following the Effective
Date. The Subscriber agrees that he will not, for a period of
Seven Hundred Thirty (730) days from the Effective Date (the “Lock-up Period”),
directly or indirectly, sell, transfer, assign or hypothecate any of the
Subscription Shares except for the transfer of up to an aggregate of fifty
percent (50%) of the Subscription Shares to (i) his spouse and/or his children
or any trust set up for the benefit of his spouse and/or children or (ii) any
entity that is an Affiliate of the Subscriber; provided that, any such
transferees shall be bound by the restrictions set forth in this Agreement and,
to the extent requested by the Company, shall agree in writing to be
bound by the provisions of this Agreement by executing a joinder in a
form reasonably acceptable to the Company. Notwithstanding the
foregoing, if the Subscriber’s employment with the Company under that certain
Employment Agreement, dated March 16, 2009, is terminated by the Company for any
reason prior to the expiration of the Lock-up Period, then such Lock-up Period
shall be deemed to have expired as well. For purposes of this
Agreement, such permitted transferees are referred to herein as “Permitted
Transferees”. For purposes of this Agreement, “Affiliate” of a
Person (as defined below) means any other Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with the first Person. For purposes of this Agreement,
“Person” means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision thereof) or other entity
of any kind.
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2.
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Acknowledgements,
Agreements, Representations and Covenants of
Subscriber.
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2.1 (a) The
Subscriber acknowledges that a purchase of the Subscription Shares involves a
high degree of risk in that (i) the Company is highly
speculative; (ii) the investment is illiquid; and (iii)
transferability of the Subscription Shares is extremely limited.
(b) The
Subscriber represents that he is an “accredited investor” within the meaning of
Rule 501(a) of Reg. D.
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(c) The
Subscriber represents and warrants (i) that he has been furnished by the Company
during the course of evaluating his interest in this transaction with all
information regarding the Company which he had requested or desired to know;
(ii) that all documents which could be reasonably provided have been made
available for his inspection and review; (iii) that he has been afforded the
opportunity to ask questions of and receive answers from duly authorized
officers or other representatives of the Company concerning the terms and
conditions of the offering; (iv) that he has read in its entirety the Company’s
most recent Securities and Exchange Commission filings including Amendment No.1
to Form S-1 Registration Statement filed January 22, 2009 and related prospectus
filed on March 11, 2009 which includes the Company’s risk factors, and fully
understands the information contained therein; and (v) that he understands those
risk factors associated with an investment in the Subscription
Shares.
(d) The
Subscriber acknowledges that the purchase price for the Subscription Shares has
been established based on a valuation for the Company which bears no
relationship to the assets or book value of the Company, or any other customary
valuation criteria.
(e) The
Subscriber represents (i) that he has not been the subject of any general
solicitation by the Company, and (ii) that he knows of no general solicitation,
including any general advertising, by the Company in connection with the sale of
the Subscription Shares.
(f) The
Subscriber acknowledges that this offering of Subscription Shares may involve
tax consequences and that he has received no opinions or statements from the
Company in respect of same. The Subscriber further acknowledges that
he must retain his own professional advisors to evaluate the tax and other
consequences of an investment in the Subscription Shares.
2.2 (a) The
Subscriber acknowledges that the Subscription Shares have not been registered
under the Securities Act, or the securities laws of any individual states, that
the Subscription Shares are being purchased for investment purposes and not with
a view to distribution or resale, nor with the intention of selling,
transferring or otherwise disposing of all or any part of such Subscription
Shares for any particular price, or at any particular time, or upon the
happening of any particular event or circumstances, except in full compliance
with all applicable provisions of the Securities Act, the rules and regulations
promulgated by the Securities and Exchange Commission (the “SEC”)
thereunder or in connection therewith, and applicable state securities
laws. The Subscriber further acknowledges that the Subscription
Shares must be held indefinitely unless they become registered under the
Securities Act, or an exemption from such registration is available, and an
opinion of counsel is furnished stating that registration is not required under
the Securities Act or such state securities laws.
(b) The
Subscriber is aware and understands that availability of the claimed exemption
from registration under the Securities Act depends, in part, upon his
investment intention. In this connection, the Subscriber is further
aware and understands that it is the position of the SEC that the statutory
basis for such exemption would not be present if his representation merely meant
that his present intention was to hold such securities for a short period, such
as the capital gains period under any tax statutes, for a deferred sale, for a
market rise, assuming that a market is maintained, or for any other fixed
period. The Subscriber is further aware and understands that, in the
view of the SEC, a purchase now with an intent to resell (notwithstanding any
registration rights granted in connection with such Subscription Shares) would
represent a purchase with an intent inconsistent with his representation to the
Company contained herein, and the SEC would likely regard such a sale or
disposition as a deferred sale to which such exemptions are not
available.
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(c) The
Subscriber understands that there is currently a very limited public market for
the Subscription Shares. The Subscriber understands that the
Subscription Shares may only be disposed of pursuant to an effective
registration statement under the Securities Act or pursuant to an available
exemption from the registration requirements of the Securities Act, and in
compliance with any applicable state securities laws. The
Subscriber further understands that Rule 144 (the “Rule”) promulgated under the
Securities Act requires, among other conditions, a holding period prior to the
resale (in limited amounts) of securities acquired in a non-public offering
without having to satisfy the registration requirements under the Securities
Act. The Subscriber further understands and hereby acknowledges
that, unless and until the Subscription Shares are registered, any determination
to allow the Subscription Shares to be transferred out of the Subscriber’s name
shall be within the exclusive discretion of the Company, and shall only be
permitted to the extent that an opinion of counsel to the Company has been
obtained to the effect that neither the sale nor the proposed transfer would
result in a violation of the Securities Act or of the applicable securities laws
of any state or other jurisdiction.
(d) The
Subscriber acknowledges that the certificates to be issued representing the
Subscription Shares may bear a legend containing the following or similar
words:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY OTHER SECURITIES
LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF, OR OFFERED FOR TRANSFER, SALE OR OTHER DISPOSITION IN THE
ABSENCE OF (i) AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
ACT, AND ANY OTHER APPLICABLE SECURITIES LAWS, OR (ii) THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION UNDER THE ACT AND ANY OTHER APPLICABLE SECURITIES
LAWS AS EVIDENCED BY AN OPINION OF COUNSEL TO THE COMPANY”.
2.3 The
Subscriber agrees to indemnify and hold harmless the Company,
and each of its officers, directors, agents and attorneys against any
and all losses, claims, demands, liabilities and expenses incurred by the
Company and/or any such individual in connection with the defending or
investigating of any claims or liabilities, including reasonable legal or other
expenses as such are incurred and whether or not resulting in any liability to
the Company or such individual, to which any such indemnified party may become
subject under the Securities Act, under any other statute, at common law or
otherwise, insofar as such losses, claims, demands, liabilities and expenses (a)
arise out of or are based upon any untrue representation or other
statement of a material fact contained in this Subscription
Agreement, or (b) arise out of or are based upon any breach by the Subscriber of
any representation, warranty, agreement or covenant contained
herein.
2.4 The
Subscriber represents that the address furnished at the end of this Subscription
Agreement is the address of Subscriber’s principal residence.
2.5 The
Subscriber acknowledges that at such time, if ever, as any of the Subscription
Shares are registered, sales of such Subscription Shares will be subject to
federal, state and other applicable securities laws, including those which may
require that such securities be sold through a registered broker-dealer or in
reliance upon an exemption from registration, and the Subscriber agrees and
covenants to comply with all such applicable laws.
2.6 The
Subscriber agrees and covenants to execute and deliver all such further
documents, agreements, and instruments, and take such other and further action,
as may be reasonably requested by the Company to carry out the purposes and
intent of, and any legal requirements associated with, this Subscription
Agreement.
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3. Representations, Agreements,
and Covenants of the Company.
3.1
The Company hereby represents and warrants to the Subscriber as of the date
hereof as follows:
(a) The
Company is a corporation duly organized and existing under the laws of the State
of Nevada, and has the power to conduct the business which it
conducts.
(b) The
acceptance, execution, and delivery of this Subscription Agreement by the
Company shall have been duly approved by the board of directors of the Company,
and all other actions required to authorize and effect the offer and sale of the
Subscription Shares shall have been duly taken and approved.
(c) Upon
issuance, the Subscription Shares shall be fully paid and
non-assessable.
3.2 The
Company is not subject to any pre-emptive rights or any other contractual
obligations that would preclude or interfere with the sale of the Subscription
Shares.
3.3 As
of the date hereof, the Company has (i) 100,000,000 shares of Common Stock
authorized, of which 32,131,021 are issued and outstanding prior to taking into
consideration the Subscription Shares, (ii) 10,000,000 shares of Preferred Stock
authorized, of which none are outstanding, and (iii) outstanding warrants
to purchase 5,837,838 shares of Common Stock. The Company further
represents that as of December 31, 2009, it had outstanding options
to purchase 3,755,126 shares of Common Stock and that it does not believe that
such number of outstanding options has changed materially since December 31,
2008.
4. Piggyback
Registration.
4.1 Following
the expiration of the Lock-up Period, until all Subscription Shares (the
“Registrable Securities”) held by the Subscriber and any Permitted Transferees
(the “Stockholders”) have been sold or may be sold without any restrictions
pursuant to Rule 144 promulgated under the Securities Act, if (but without any
obligation to do so) the Company proposes to register any of its Common Stock
under the Securities Act in connection with the public offering of
such securities by the Company solely for cash (other than a registration on
Form S-8 (or similar or successor form) relating solely to the sale of
securities to participants in a Company stock plan or to other compensatory
arrangements to the extent includable on Form S-8 (or similar or successor
form), or a registration on Form S-4 (or similar or successor form)), the
Company shall, at such time, promptly give each Stockholder that then holds
Registrable Securities written notice of such registration. Upon the
written request of any such Stockholders or any other party that may have
piggyback registration rights with the Company received by the Company within
ten (10) business days after mailing of such notice by the Company in accordance
with this Section
4(a) (the “Electing Holders”),
the Company shall (subject to, among other things, limitations imposed by the
Securities and Exchange Commission or federal securities laws and regulations)
use its commercially reasonable efforts to include in such registration all of
such Registrable Securities that are specified in such
request. Notwithstanding the foregoing, the Company shall not be
required to register any Registrable Securities that are eligible for resale
pursuant to Rule 144 promulgated under the Securities Act or that are the
subject of a then effective registration statement. If the
registration involves an underwritten offering to the public, all Electing
Holders must sell their Registrable Securities to the underwriters selected by
the Company on the same terms and conditions as apply to the Company or other
selling stockholders. If, at any time after giving notice of the
Company’s intention to register any securities pursuant to this Section 4(a) and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register such securities, the Company shall give written notice to all holders
of Registrable Securities and, thereupon, shall be relieved of its obligation to
register any Registrable Securities in connection with such
registration. The Company shall have no obligation to make any
offering of its securities, or to complete an offering of its securities that it
proposes to make.
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4.2 If such registration involves an
underwritten offering to the public, if the managing underwriter of the
underwritten offering shall inform the Company by letter of the underwriter’s
opinion that the number of Registrable Securities requested to be included in
such registration would, in its opinion, materially adversely affect such
offering, including the price at which such securities can be sold, and the
Company has so advised the Electing Holders in writing, then the Company shall
include in such registration, to the extent of the number that the Company is so
advised can be sold in (or during the time of) such offering, (i) first, all
securities proposed by the Company to be sold for its own account, then (ii)
such Registrable Securities requested to be included by the Electing Holders,
allocated pro rata among such Electing Holders in proportion, as nearly as
practicable, to the respective amounts of such securities requested to be
included in such registration.
4.3 Each Electing Holder agrees that,
upon receipt of any notice from the Company of the happening of a Specified
Event (as defined below) such Electing Holder will immediately discontinue
disposition of Registrable Securities pursuant to any registration statement
covering such Registrable Securities until such Electing Holder’s receipt of
copies of a supplemented or amended prospectus (which the Company shall promptly
prepare following the happening of a Specified Event) or receipt of notice that
no supplement or amendment is required. For purposes of this
Agreement, “Specified Event” means (i) the Securities and Exchange Commission
issues any stop order suspending the effectiveness of any registration statement
or initiates any proceedings for that purpose; (ii) the Company receives notice
of any suspension of the qualification or exemption from qualification of any
Registrable Securities for sale in any jurisdiction, or the initiation or threat
of any proceeding for such purpose; or (iii) the financial statements included
in any registration statement become ineligible for inclusion therein or any
statement made in any registration statement or related prospectus or any
document incorporated or deemed to be incorporated therein by reference is
untrue in any material respect or any revision to a registration statement,
related prospectus or other document is required so that it will not contain any
untrue statement of a material fact or omit to state any 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.
4.4 Each
Electing Holder covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to it or an exemption
therefrom in connection with sales of Registrable Securities pursuant to a
registration statement.
4.5 Each
Electing Holder shall furnish to the Company such information regarding such
holder and the distribution proposed by such holder as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration referred to in this Section 4.
5. Miscellaneous.
5.1 Any
notice, service of process, or other communication given hereunder shall be
deemed sufficient if in writing and sent by registered or certified mail, return
receipt requested, addressed to the Company at 12701 Commonwealth Drive, Suite
5, Fort Meyers, FL 33913, and to the Subscriber at his address indicated on the
last page of this Subscription Agreement. Notices shall be deemed to
have been given on the date of mailing, except notices of change of address,
which shall be deemed to have been given when received. Either party
may change its address for purposes hereof at any time or from time to time by
providing notice in writing to the other party in accordance herewith, and any
such newly designated address shall thereafter serve for purposes hereof in lieu
of the address stated herein.
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5.2 This
Subscription Agreement shall not be changed, modified, or amended except through
a writing signed by both the Company and the Subscriber.
5.3 This
Subscription Agreement shall be binding upon and inure to the benefit of the
parties hereto and to their respective heirs, legal representatives, successors,
and/or assigns. This Subscription Agreement sets forth the
entire agreement and understanding between the parties as to the subject matter
hereof and supersedes all prior discussions, agreements, and understandings of
any and every nature between them.
5.4 Notwithstanding
the place where this Subscription Agreement may have been executed by either
party, it is agreed that all the terms and provisions hereof shall be construed
in accordance with and governed by the laws of the State of Nevada without
regard to principles of conflicts of laws. The parties hereby agree
that any dispute that may arise between them arising out of or in connection
with this Subscription Agreement shall be adjudicated before a court located in
Lee County, Florida and they hereby submit to the exclusive
jurisdiction of the courts of the State of Florida located in Fort Myers,
Florida, and of the federal courts having jurisdiction in such district with
respect to any action or legal proceeding commenced by either party, and
irrevocably waive any objection they now or hereafter may have respecting the
venue of any such action or proceeding brought in such a court or respecting the
fact that such court is an inconvenient forum, relating to or arising out of
this Subscription Agreement or any acts or omissions relating to the sale of the
securities pursuant hereto.
5.5 This
Subscription Agreement may be executed in counterparts. Upon the
execution and delivery of this Subscription Agreement by the Subscriber, this
Subscription Agreement shall become a binding obligation of the Subscriber with
respect to the purchase of the Subscription Shares as herein provided, but shall
only be binding upon the Company if and when executed by the
Company.
5.6 The
holding of any provision of this Subscription Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Subscription Agreement, which shall remain in full force and
effect.
5.7 It
is agreed that a waiver by either party of a breach of any provision of this
Subscription Agreement shall not operate, or be construed, as a waiver of any
subsequent or continuing breach by that same party.
IN
WITNESS WHEREOF, the parties have executed this Subscription Agreement as of the
day and year set forth in each case below.
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Signature
of Subscriber or Representative
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Subscription
Accepted:
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DOUGLAS
M. VANOORT LIVING TRUST
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NEOGENOMICS,
INC.
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Nevada Corporation -
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/s/
Douglas M. VanOort
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By:
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/s/Robert P. Gasparini | |||
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Name:
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Douglas
M. VanOort
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Name:
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Robert
P. Gasparini
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Title:
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Trustee
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Title:
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President
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Date:
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March
16, 2009
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Date:
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March
16, 2009
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Address:
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3275
Regatta Road
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Naples,
FL 34103
Total
Number of Common Shares Subscribed For: 625,000 (for a gross
purchase price of $500,000)
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