S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on June 4, 2009
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
NEOGENOMICS,
INC.
(Exact
name of registrant as specified in its charter)
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Nevada
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74-2897368
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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12701
Commonwealth Drive, Suite 9
Fort
Myers, Florida 33913
(Address
of Principal Executive Offices)
NEOGENOMICS, INC. AMENDED
AND RESTATED EQUITY INCENTIVE PLAN
(Full
Title of the Plan)
Robert
P. Gasparini
12701
Commonwealth Drive, Suite 9
Fort
Myers, Florida 33913
239.768.0600
(Name,
address, and telephone number of agent for service)
With
copies to:
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Clayton
E. Parker, Esq.
Mark
E. Fleisher, Esq.
K&L
Gates LLP
200
South Biscayne Boulevard, Suite 3900
Miami,
Florida 33131
Telephone:
305.539.3300
Facsimile:
305.358.7095
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Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer”, “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
(Check
one):
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Large
accelerated filer ¨
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Accelerated
filer ¨
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Non-accelerated
filer ¨
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Smaller
reporting company þ
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Proposed
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Proposed
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|||
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maximum
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maximum
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|||
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Amount
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offering
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aggregate
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Amount
of
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Title
of securities
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To
be
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price
per
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offering
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registration
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to
be registered
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Registered (1)
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share (2)
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pice (2)
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fee (2)
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Common
Stock, $0.001
par value
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2,656,110
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$1.35
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$3,585,749
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$201
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Total
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2,656,110
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$1.35
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$3,585,749
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$201
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(1)
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The
NeoGenomics, Inc. Amended and Restated Equity Incentive Plan (the “Plan”)
authorizes the issuance of a maximum of 6,500,000 shares of common stock,
par value $.001 per share (“Common Stock”),
of NeoGenomics, Inc. (the “Company”). This
Registration Statement registers 2,656,110 shares of Common Stock of the
Company for issuance pursuant to the Plan, in addition to the 1,594,065
shares registered under the Plan on a registration statement on Form S-8
(File No. 333-139484) filed with the Securities and Exchange Commission
(the “SEC”) on
December 19, 2006 and the 2,249,825 shares registered under the Plan on a
registration statement on Form S-8 (File No. 333-125994) filed with the
SEC on June 21, 2005. This Registration Statement also
registers additional securities to be offered or issued upon adjustments
or changes made to registered securities by reason of any stock splits,
stock dividends or similar transactions as permitted by Rule 416(a) and
Rule 416(b) under the Securities Act of 1933, as amended (the “Securities
Act”).
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(h) of the Securities Act. The proposed maximum
offering price per share, proposed maximum aggregate offering price and
amount of registration fee were computed based upon the average of the
high and low prices of shares of the Company’s Common Stock as reported on
the Over-The-Counter Bulletin Board on June 3,
2009.
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PART
I
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Item
1.
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Plan
Information.
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Not required to be filed with this
Registration Statement.
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Item
2.
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Registrant
Information and Employee Plan Annual
Information.
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Not required to be filed with this
Registration Statement.
PART
II
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Item
3.
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Incorporation
of Documents by Reference.
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The following documents have been
previously filed by the Company with the SEC and are hereby incorporated by
reference into this Registration Statement and shall be deemed a part
hereof:
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(a)
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The
Annual Report of the Company on Form 10-K for the fiscal year ended
December 31, 2008, filed with the SEC on April 14,
2009;
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(b)
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The
Quarterly Report of the Company on Form 10-Q for the quarterly period
ended March 31, 2009, filed with the SEC on May 14,
2009;
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(c)
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The
Current Report of the Company on Form 8-K filed with the SEC on March 20,
2009; and
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(d)
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All
other reports filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
since December 31, 2008.
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All
documents filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of
the Exchange Act after the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by
reference in this Registration Statement shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein, or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement. Any Current Report on Form 8-K that is
furnished to the SEC but not filed with the SEC is not deemed incorporated by
reference into this Registration Statement.
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Item
4.
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Description
of Securities.
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Common Stock
The
securities being offered hereby are Common Stock. The outstanding shares of
Common Stock are fully paid and non-assessable. The holders of Common Stock are
entitled to one vote per share for the election of directors and with respect to
all other matters submitted to a vote of stockholders. Shares of the
Company’s Common Stock do not have cumulative voting rights, which means that
the holders of more than fifty percent of such shares voting for the election of
directors can elect one hundred percent of the directors if they choose to do
so. The Common Stock does not have preemptive rights, meaning that the common
stockholders’ ownership interest in the Company would be diluted if additional
shares of Common Stock are subsequently issued and the existing stockholders are
not granted the right, at the discretion of the Company’s Board of Directors, to
maintain their ownership interest in the Company.
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Upon liquidation,
dissolution or winding-up of the Company, the Company’s assets, after the
payment of debts and liabilities and any liquidation preferences of, and unpaid
dividends on, any class of preferred stock then outstanding, will be distributed
pro-rata to the holders of Common Stock. The holders of Common Stock do not have
preemptive or conversion rights to subscribe for any of the Company’s securities
and have no right to require the Company to redeem or purchase their
shares. The holders of Common Stock are entitled to share equally in
dividends, if, as and when declared by the Company’s Board of Directors, out of
funds legally available therefore, subject to the priorities given to any class
of preferred stock which may be issued.
Preferred
Stock
The
Company is authorized to issue 10,000,000 shares of preferred stock, par value
$0.001 per share (the “Preferred
Stock”). Preferred Stock may be issued from time to time in
one or more series. The Company’s Board of Directors is authorized to fix or
alter the dividend rights, dividend rate, conversion rights, voting rights,
rights and terms of redemption (including sinking fund provisions), the
redemption price or prices, the liquidation preferences of any wholly unissued
series of Preferred Stock, and the number of shares constituting any such series
and the designation thereof, or any of them; and to increase or decrease the
number of shares of any series subsequent to the issue of shares of that series,
but not below the number of shares of such series then outstanding and which the
Company may be obligated to issue under options, warrants or other contractual
commitments. In case the number of shares of any series shall be so decreased,
the shares constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the number of shares
of such series. As of May 26, 2009, no such shares have been
designated.
Warrants
As of May
26, 2009, warrants to purchase 6,512,755 shares of our common stock
were outstanding. The exercise prices of these warrants range from
$0.26 to $1.50 per share.
Options
As of May
26, 2009, options to purchase 4,903,084 shares of our common stock were
outstanding. The exercise prices of these options range from $0.16 to
$1.82 per share.
Transfer Agent
The
Company’s transfer agent is Standard Registrar & Transfer Company located at
12528 South 1840 East Draper, Utah, 84020. The
transfer agent’s telephone number is (801) 571-8844.
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Item
5.
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Interests
of Named Experts and Counsel.
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Not
applicable.
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Item
6.
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Indemnification
of Directors and Officers.
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The
Company’s Articles of Incorporation provide that no director or officer of the
Company shall be personally liable to the Company or any of its stockholders for
damages for breach of fiduciary duty as a director or officer of for any act or
omission of any such director or officer; however such indemnification shall not
eliminate or limit the liability of a director or officer for (a) acts or
omissions which involve intentional misconduct, fraud or a knowing violation of
law or (b) the payment of dividends in violation of Section 78.300 of the Nevada
Revised Statutes. The Company’s Amended and Restated Bylaws (the “Bylaws”) provide that
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person is or was a director, officer, employee or agent of the Company (or is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise) shall be indemnified and held harmless by the Company to the fullest
extent permitted by Nevada law against expenses including attorneys’ fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such proceeding.
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The
Bylaws also provide that the Company must indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed proceeding by or in the right of the Company to procure a judgment in
its favor by reason of the fact that such person is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust or other enterprise against costs incurred by
such person in connection with the defense or settlement of such action or suit.
Such indemnification may not be made for any claim, issue or matter as to which
such person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals, to be liable to the Company or for amounts paid in
settlement to the Company, unless and only to the extent that the court
determines upon application that in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for such expenses as
the court deems proper.
The
Bylaws provide that the Company must pay the costs incurred by any person
entitled to indemnification in defending a proceeding as such costs are incurred
and in advance of the final disposition of a proceeding; provided however, that
the Company must pay such costs only upon receipt of an undertaking by or on
behalf of such person to repay the amount if it is ultimately determined by a
court of competent jurisdiction that such person is not entitled to be
indemnified by the Company.
The
Bylaws provide that the Company may purchase and maintain insurance or make
other financial arrangements on behalf of any person who is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise in accordance with Section
78.752 of the Nevada Revised Statutes.
Nevada
Revised Statutes 78.751 and 78.7502 have similar provisions that provide for
discretionary and mandatory indemnification of officers, directors, employees,
and agents of a corporation. Under these provisions, such persons may be
indemnified by a corporation against expenses, including attorney’s fees,
judgment, fines and amounts paid in settlement, actually and reasonably incurred
by him in connection with the action, suit or proceeding, if he acted in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation and with respect to any criminal action or
proceeding had no reasonable cause to believe his conduct was
unlawful.
To the
extent that a director, officer, employee or agent has been successful on the
merits or otherwise in defense of any action, suit or proceeding, or in defense
of any claim, issue or matter, the Nevada Revised Statues provide that he must
be indemnified by the Company against expenses, including attorney’s fees,
actually and reasonably incurred by him in connection with the
defense.
Section
78.751 of the Nevada Revised Statues also provides that any discretionary
indemnification, unless ordered by a court or advanced by the Company, must be
made only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The determination must be made:
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·
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By
the stockholders;
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·
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By
the Company’s Board of Directors by majority vote of a quorum consisting
of directors who were not parties to that act, suit or
proceeding;
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·
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If
a majority vote of a quorum consisting of directors who were not parties
to the act, suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion; or
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·
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If
a quorum consisting of directors who were not parties to the act, suit or
proceeding cannot be obtained, by independent legal counsel in a written
opinion.
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Item
7.
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Exemption
from Registration Claimed.
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Not
Applicable.
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Item
8.
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Exhibits.
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Exhibit
No.
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Description
of Exhibit
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4.1
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NeoGenomics,
Inc. Amended and Restated Equity Incentive Plan (1)
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5.1
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Opinion
of Burton, Bartlett & Glogovac
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23.1
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Consent
of Kingery & Crouse, P.A.
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23.2
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Consent
of Burton, Bartlett & Glogovac (contained in opinion filed as Exhibit
5.1)
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24.1
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Power
of Attorney (included on signature page
hereto)
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(1)
Incorporated by reference to the Company’s Current Report on Form 8-K
filed with the SEC on March 20, 2009.
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Item
9.
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Undertakings.
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(a) The Company hereby
undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of this Registration Statement
(or the most recent post-effective amendment hereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total dollar value
of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a twenty percent (20%) change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective
Registration Statement; and
(iii) To include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in this
Registration Statement;
PROVIDED, HOWEVER, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Commission by the Company pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of
determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at the time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by
means of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for the purpose of
determining liability of the Company under the Securities Act to any purchaser
in the initial distribution of the securities, the Company undertakes that in a
primary offering of securities of the Company pursuant to this Registration
Statement, regardless of the underwriting method used to sell the securities to
the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the Company will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
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(i) Any preliminary prospectus or
prospectus of the Company relating to the offering required to be filed pursuant
to Rule 424;
(ii) Any free writing prospectus
relating to the offering prepared by or on behalf of the Company or used or
referred to by the Company;
(iii) The portion of any other free
writing prospectus relating to the offering containing material information
about the Company or its securities provided by or on behalf of the Company;
and
(iv) Any other communication that is an
offer in the offering made by the Company to the purchaser.
(b) The Company hereby undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the Company’s annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by the Company is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, the registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Fort Myers, Florida, on
June 4, 2009.
| NeoGenomics, Inc. | |||
|
Date: June
4, 2009
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By: |
/s/ Robert P.
Gasparini
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|
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Robert
P. Gasparini
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|||
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President
and Chief Science Officer
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We, the undersigned directors and
officers of Neogenomics, Inc., do hereby constitute and appoint Robert P.
Gasparini and Steven C. Jones, and each and any of them, our true and lawful
attorneys-in-fact and agents to do any and all acts and things in our names and
our behalf in our capacities as directors and officers and to execute any and
all instruments for us and in our name in the capacities indicated below, which
said attorneys and agents, or any of them, may deem necessary or advisable to
enable Neogenomics, Inc. to comply with the Securities Act of 1933, as amended,
and any rules, regulations and requirements of the Securities and Exchange
Commission in connection with this registration statement, including
specifically, but without limitation, any and all amendments (including
post-effective amendments) hereto, and we hereby ratify and confirm all that
said attorneys and agents, or any of them, shall do or cause to be done by
virtue thereof.
Pursuant to the requirements of the
Securities Act of 1933, this registration statement has been signed by the
following persons in the capacities and on the dates indicated
below:
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Signatures
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Title
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Date
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|
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/s/ Douglas M. VanOort
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Chairman
of the Board, Executive Chairman
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June
4, 2009
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Douglas
M. VanOort
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and Interim Chief Executive Officer | ||
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/s/ Robert P. Gasparini
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President,
Chief Science Officer and Director
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June
4, 2009
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Robert
P. Gasparini
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(Principal
Executive Officer)
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||
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/s/ Steven C. Jones
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Acting
Principal Financial Officer and Director
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June
4, 2009
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Steven
C. Jones
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(Principal
Financial Officer)
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||
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/s/ Jerome J. Dvonch
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Director
of Finance
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June
4, 2009
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Jerome
J. Dvonch
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(Principal
Accounting Officer)
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||
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/s/Michael T. Dent, M.D.
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Director
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June
4, 2009
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Michael
T. Dent, M.D.
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/s/ George G. O’Leary
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Director
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June
4, 2009
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George
G. O’Leary
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/s/ Peter M. Peterson
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Director
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June
4, 2009
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Peter
M. Peterson
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/s/William J. Robison
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Director
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June
4, 2009
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William
J. Robison
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/s/ Marvin E. Jaffe
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Director
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June
4, 2009
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Marvin
E. Jaffe
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EXHIBIT
INDEX
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Exhibit
No.
|
Description
of Exhibit
|
|
|
4.1
|
NeoGenomics,
Inc. Amended and Restated Equity Incentive Plan (1)
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|
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5.1
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Opinion
of Burton, Bartlett & Glogovac
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23.1
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Consent
of Kingery & Crouse, P.A.
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|
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23.2
|
Consent
of Burton, Bartlett & Glogovac (contained in opinion filed as Exhibit
5.1)
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|
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24.1
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Power
of Attorney (included on signature page
hereto)
|
(1)
Incorporated by reference to the Company’s Current Report on Form 8-K
filed with the SEC on March 20, 2009.
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