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Published on June 15, 2010
NEOGENOMICS,
INC.
12701
COMMONWEALTH DRIVE, SUITE 9
FORT
MYERS, FLORIDA 33913
June 15,
2010
VIA
EDGAR
United
States Securities And Exchange Commission
100 F
Street, North East
Mail Stop
3561
Washington,
D.C. 20549
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Attention:
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John
Reynolds, Assistant Director
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Blaise Rhodes, Staff
Accountant
Brian Bhandari, Accounting
Reviewer
Janice McGuirk, Examiner
Pam Howell, Legal Reviewer
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Re:
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NeoGenomics, Inc. (the
“Company”)
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Form 10-K for the Fiscal Year Ended
December 31, 2009
Filed March 29, 2010
File No. 333-72097
Ladies
and Gentlemen:
The
Company confirms receipt of the letter dated June 4, 2010 from the staff (the
“Staff”) of the
Securities and Exchange Commission (the “Commission”) with
respect to the above-referenced filing. We are responding to the
Staff’s comments as set forth below. The Staff’s comments are set
forth below in bold, followed by the Company’s response..
Part
III.
General
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COMMENT
#1:
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We
note that you have not included any disclosure in response to Item 402(s)
of Regulation S-K. Please advise us of the basis for your
conclusion that disclosure is not necessary and describe the process you
undertook to reach that conclusion.
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RESPONSE:
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The
Company respectfully directs the Staff’s attention to the Commission’s
Final Rule regarding Proxy Disclosure Enhancements [Release Nos. 33-9089;
34-61175; IC-29092; File No. S7-13-09] issued on December 16, 2009 (the
“Release”). The
discussion of Item 402(s) of Regulation S-K in the Release includes the
following on page 16:
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June 15,
2010
Page
2
“Consistent with the approach taken in
the proposals, smaller reporting companies will not be required to provide the
new disclosure, even though the new rule will not be part of CD&A. At this
time, we believe that such companies are less likely to have the types of
compensation policies and practices that are intended to be addressed in this
rulemaking.”
The
Company further directs the Staff’s attention to Item 402(l) of Regulation S-K
which provides that”
“A
registrant that qualifies as a “smaller reporting company,” as defined by Item
10(f) (§229.10(f)(1)), may provide the scaled disclosure in paragraphs (m)
through (r) instead of paragraphs (a) through (k) and (s) of this
Item.”
The Company is a smaller reporting
company and as a result concluded that the disclosure specified in Item 402(s)
of Regulation S-K was not required.
Item 9 A(T). Controls and
Procedures — Evaluation of Disclosure Controls and Procedures, page
73
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COMMENT
#2:
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You
indicate that your disclosure controls and procedures are designed to
provide reasonable assurance of achieving their
objectives. Please confirm to us that you will disclose in
future Exchange Act filings that your principal executive officer and
principal financial officer concluded that your disclosure controls and
procedures are effective at that reasonable assurance level. In
the alternative, you may remove the reference to the level of assurance of
your disclosure controls and procedures.
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RESPONSE:
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The
Company confirms that in future Exchange filings it will disclose, as
appropriate, that the Company’s principal executive officer and principal
financial officer concluded that the Company’s disclosure controls and
procedures are effective at a reasonable assurance
level.
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June 15,
2010
Page
3
Item
10. Directors, Executive Officers and Corporate Governance (page
76)
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COMMENT
#3:
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In
future filings, please provide a discussion of the experience,
qualifications, attributes or skills of each director and person nominated
to become a director that led to the conclusion that the person should
serve as a director in light of the company’s business and
structure. In your response letter, please provide us with a
draft of your proposed disclosure. Please refer to Item 401(e)
of Regulation S-K. Such information should be provided on an
individual basis. For general guidance please refer to Question
116.05 of the Compliance and Disclosure
Interpretations.
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RESPONSE:
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The
Company confirms that in future filings it will provide, as appropriate, a
discussion of the experience, qualifications, attributes or skills of each
director and person nominated to become a director that led to the
conclusion that the person should serve as a director in light of the
Company’s business and structure. The following is a draft of
the Company’s proposed disclosure:
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Director
Experience, Qualifications, Attributes and Skills
The
following is a summary of some of the experience, qualifications, attributes and
skills that led the Company’s Board of Directors to conclude that such person should
serve as a director at the time that this filing is made with the
Securities and Exchange Commission, in light of the Company’s business and
structure. This information supplements the biographical information
provided above.
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·
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Douglas M. VanOort, Chairman of
the Board of Directors and Chief Executive Officer. Mr. VanOort has
significant experience in the laboratory industry including experience
obtained as Chairman of the Board of Directors and Chief Executive Officer
of the Company and as Senior Vice President Operations for Quest
Diagnostics, Incorporated. Mr. VanOort also has significant
financial experience having served as Executive Vice President and CFO of
Corning Life Sciences, Inc. and as an Operating Partner with Summer Street
Capital Partners and a Founding Partner of Conundrum Capital Partners. Mr.
VanOort is also an experienced executive officer and manager as
illustrated by the the above described positions and others included in
the biographical information provided
above.
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·
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Robert P. Gasparini, President
and Chief Science Officer, Board Member. Mr. Gasparini
has a long and distinguished career in genetics in both a commercial
setting and academe. His service at NeoGenomics and with U.S.
Labs has given him experience in sales and marketing, business
development, technology development and laboratory operations in a high
complexity setting.
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·
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Steven C. Jones, Executive Vice
President of Finance, Board Member, and Chairman of the Compliance
Committee. Mr. Jones has a background in investment
banking and in investing in the healthcare industry. Mr. Jones provides
valuable experience to NeoGenomics with respect to investor relations and
business financing. He has experience as CFO of NeoGenomics and
of various public and private
companies.
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June 15,
2010
Page
4
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·
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Michael T. Dent M.D., Board
Member. Dr. Dent is the founder of the Company and his
experience in Obstetrics and Gynecology give him valuable insight into the
physician market. He is the only medical doctor on our Board of
Directors. His experience with running a laboratory information system
business also provides insight into technology that may be utilized by the
Company.
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·
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George G. O’Leary, Board Member
and Chairman of the Audit Committee. Mr. O’Leary currently runs his
own consulting company, SKS Consulting of South Florida Corp., where he
advises multiple businesses in a CEO or CFO capacity. He has
had experience as a CEO, President, CFO, and COO of various companies and
has public accounting experience. Mr. O’Leary has a track
record of growing and managing profitable businesses and has the financial
knowledge to act as the Company’s audit committee financial expert and
Chairman of the Audit Committee.
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·
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Peter M. Petersen, Board
Member. Mr. Peterson has significant experience in capital
management, investment banking and in financial management, including
prior experience with 14 clinical laboratories. Mr. Petersen
also has knowledge and experience in working with institutional
investors.
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·
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Marvin E. Jaffe, Board
Member. Mr. Jaffe spent his entire working career in the
pharmaceutical industry and has experience in the development of new drugs
and biologics. Mr. Jaffe provides valuable knowledge of health
related subjects, guidance on new technologies and overall general
business acumen.
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·
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William J. Robison, Board
Member and Chairman of the Compensation Committee. Mr.
Robison spent his entire 41 year career with Pfizer which included
positions in the sales organization and as Senior Vice President and
President of various business units within Pfizer. Mr. Robison
has extensive health care knowledge and offers valuable insight and
recommendations with respect to managing our sales-force and our
compensation plans.
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Outstanding Equity Awards at
Fiscal Year End, (page 80)
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COMMENT
#4:
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In
future filings, please disclose the aggregate grant date fair value of the
option awards as computed in accordance with FASB Accounting Standards
Codification Topic 718. See Item 402(r)(2)(iv) of Regulation
S-K.
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RESPONSE:
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The
Company confirms that in future filings
it will disclose the aggregate grant date fair value of the option awards
in accordance with FASB Accounting Standards Codification Topic 718 and
Item 402(r)(2)(iv) of Regulation
S-K.
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June 15,
2010
Page
5
Part
IV
Item 15.
Exhibits
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COMMENT
#5:
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We
note that exhibits 10.24, 10.25, 10.26, 10.27, 10.32, 10.35, 10.36, 10.38,
10.39, 10.41, and 10.42 to the Form 10-K and Exhibit 10.44 to the Form
10-Q for the quarter ended March 31, 2010 have omitted certain schedules,
attachments, or exhibits. Please file with your next periodic
report these exhibits in their entirety as required by to Item 601(b)(10)
of Regulation S-K or advise.
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RESPONSE:
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The
Company acknowledges the Staff’s comment and intends to file the above
referenced exhibits in their entirety in the Company’s next periodic
report.
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The Company acknowledges
that:
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■
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the
Company is responsible for the adequacy and accuracy of the disclosure in
the filing;
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■
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Staff
comments or changes to disclosure in response to Staff comments do not
foreclose the Commission from taking any action with respect to the
filing; and
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■
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the
Company may not assert comments as a defense in any proceeding initiated
by the Commission or any person under the federal securities law of the
United States.
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We trust
that this response satisfactorily responds to your request. Should
you require further information, please contact Clayton Parker, Esq. at (305)
539-3300 or myself at (239) 768-0600.
Thank you
very much for your consideration of this response.
| Very truly yours, | |||
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/s/ Douglas VanOort | |
| Douglas VanOort | |||
| Chief Executive Officer | |||