SHAREHOLDERS' AGREEMENT
Shareholders' Agreement ("Shareholders' Agreement"), dated as of April 15,
2003 by and among NeoGenomics, Inc., a Nevada corporation having its principal
offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company"),
▇▇▇▇▇▇▇ ▇▇▇▇ ("▇▇. ▇▇▇▇"), MVP 3, LP, a limited partnership organized under the
laws of Delaware ("MVP"), ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇▇▇
(collectively, the "Individual Investors"). ▇▇. ▇▇▇▇, MVP and the Individual
Investors may be referred to herein individually as a "Shareholder" and
collectively as the "Shareholders."
.
W I T N E S S E T H:
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, MVP, 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 April 15, 2003 (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
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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.
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1.2.1 Composition of Board. The Shareholders agree that during
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the Term of this Agreement the Board of Directors of the Company shall consist
of no more than seven (7) members and that the initial Board of Directors shall
be as follows until such time as new members shall be elected or appointed to
the Board of Directors in accordance with this Agreement:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, M.D.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
The Board of Directors shall hold their positions until the next annual meeting
of Shareholders. The Shareholders and the Company further agree that at each
meeting of Shareholders, the Company's Board of Directors shall be nominated by
the Company and elected by the Shareholders in accordance with the terms,
conditions, and provisions of Section 1.2.2 below.
1.2.2 Election of the Board of Directors. At each annual meeting
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of shareholders or any special meeting of shareholders called to elect
Directors, ▇▇. ▇▇▇▇, MVP and the Individual Investors 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 so that the Company's Board of Directors shall, at all times,
consist of members who shall be nominated and elected as follows:
(i) The Dent Director. ▇▇. ▇▇▇▇ shall have the right to nominate and
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elect one (1) director (the "Dent Director") to the Company's Board of
Directors. The right of ▇▇. ▇▇▇▇ to appoint the Dent Director will expire upon
the earlier of: (i) ▇▇. ▇▇▇▇'▇ resignation as an officer of the Company; (ii)
the termination of ▇▇. ▇▇▇▇'▇ employment for cause (as set forth in his
Employment Agreement); or (iii) the sale by ▇▇. ▇▇▇▇ of more than fifty percent
(50%) of the Shares he holds as of the date of this Agreement.
(ii) The MVP Directors. MVP shall have the right to nominate and elect
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four (4) directors (the "MVP Directors") to the Company's Board of Directors.
(iii) The Independent Directors. MVP and ▇▇. ▇▇▇▇ shall mutually
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agree upon two non-employee directors (the "Independent Directors") and shall
appoint such individuals to the Company's Board of Directors.
1.2.3 Non-voting Observers. At any time that no MVP Director serves
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on the Company's Board of Directors, MVP shall be entitled to appoint up to two
(2) 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 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. MVP shall be entitled to appoint,
re-appoint, remove, replace, and fill any vacancy arising from the death,
disability, resignation, or removal by the MVP 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 MVP replace any observer that the Company, in
good faith, believes improperly impairs the function of the Board, to which
request MVP shall give due consideration.
1.2.4 Term; etc. ▇▇. ▇▇▇▇, MVP and the Individual Investors shall vote
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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.
1.3 Officers. The Board shall appoint such officers of the Company as
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may be prescribed by the Company's bylaws. It is agreed by the parties that the
initial officer of the Company shall be:
Name Titles
---- ------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, M.D. Chief Executive Officer and
Secretary
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.
1.4 Capitalization. The Company represents that the current
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capitalization of the Company is as follows:
(a) Common Stock: There are currently one hundred million
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(100,000,000) authorized shares of Common Stock, par value $.001 per share, of
which 18,409,416 shares are issued and outstanding.
(b) On a Fully-Diluted Basis: Except for (i) 40,000 shares which
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the Company intends to issue to Technology Capital Group, Inc., (ii) 20,000
shares which the Company intends to issue to its Scientific Advisory Board, and
(iii) an option to acquire 100,000 shares at the market price on the date of
issuance, which the Company intends to issue to a member of its Board of
Directors, 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
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(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 ▇▇. ▇▇▇▇) 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
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and not in limitation of any other restrictions on Sales of Shares contained in
this Agreement, any Sale of Stock by ▇▇. ▇▇▇▇ shall be consummated only in
accordance with the following procedures:
(a) ▇▇. ▇▇▇▇ shall first deliver to the Company and the Individual Investors a
written notice (a "RFR Offer Notice"), which shall (i) state ▇▇. ▇▇▇▇'▇
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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
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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
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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
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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
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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 ▇▇. ▇▇▇▇ 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 ▇▇. ▇▇▇▇ 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
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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
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Notice; provided, however, that, if the RFR Offer contemplated an All or Nothing
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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
▇▇. ▇▇▇▇ within the Individual Investors RFR Acceptance Period specifying the
maximum number of shares such Investor will purchase (the "First Offer Shares").
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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 ▇▇. ▇▇▇▇ 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
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Period"). To the extent ▇▇. ▇▇▇▇ Sells all or any portion of the Shares so
offered for Sale during the Sale Period, ▇▇. ▇▇▇▇ shall promptly notify the
Company, and the Company shall promptly notify the Individual Investors, as to
(i) the number of Shares, if any, that ▇▇. ▇▇▇▇ then owns, (ii) the number of
Shares that ▇▇. ▇▇▇▇ 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 ▇▇. ▇▇▇▇ during the Sale Period, the right of ▇▇. ▇▇▇▇ 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 ▇▇. ▇▇▇▇ pursuant to this Section 2.2, ▇▇. ▇▇▇▇ 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 ▇▇. ▇▇▇▇ shall propose to sell his Shares pursuant to provisions of
Rule 144, ▇▇. ▇▇▇▇ shall first deliver to the Company and the Individual
Investors, a written notice (a "RFR Offer Notice"), which shall (1) state that
▇▇. ▇▇▇▇ 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 ▇▇. ▇▇▇▇ 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 ▇▇.
▇▇▇▇ 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, ▇▇. ▇▇▇▇ 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 ▇▇. ▇▇▇▇ sells all or any portion of the Subject Shares, ▇▇. ▇▇▇▇
shall promptly notify the Company and the Company shall promptly notify the
Individual Investors as to the number of Subject Shares which ▇▇. ▇▇▇▇ has sold
pursuant to this provision. In the event that all of the Subject Shares are not
sold by ▇▇. ▇▇▇▇ during this 90 day period, the right of ▇▇. ▇▇▇▇ 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.
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(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.
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(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.
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(a) 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
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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 10% 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
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not enter into any transaction with MVP, the Individual Investors, ▇▇. ▇▇▇▇ 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.
4.2 Indemnification.
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(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
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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
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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
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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 SHAREHOLDERS' AGREEMENT DATED AS OF ______________
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
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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:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇▇
5.5. Partial Invalidity. If any portion of this Agreement shall be
-------------------
ruled or adjudicated invalid for any reason, that por-tion 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) a sale of any Shares pursuant to Rule 144;
(b) a sale pursuant to Section 2.4.; or
(c) 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 April 14, 2005, ▇▇. ▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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:____________________________
Name:
Title: President
MVP 3, LP, A DELAWARE LIMITED PARTNERSHIP
BY: MEDICAL VENTURE PARTNERS, LLC,
A DELAWARE LIMITED LIABILITY
COMPANY, ITS GENERAL PARTNER
By:____________________________
Name:
Title:
_______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, M.D.
_______________________________
▇▇▇▇ ▇▇▇▇▇▇
_______________________________
▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
SCHEDULE A
OWNERSHIP OF SHARES
NAME NUMBER OF SHARES % OF FULLY DILUTED OUTSTANDING
---- ------------------ ----------------------------------
MVP 3, LP 9,303,279 50.1%
▇▇▇▇ ▇▇▇▇▇▇ 1,541,261 8.3%
▇▇▇▇▇▇ ▇▇▇▇▇ 1,541,261 8.3%
▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,541,261 8.3%
▇▇▇▇▇▇▇ ▇▇▇▇ 2,490,634 13.4%
