REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made this 15th day
of April, 2003, by NEOGENOMICS, INC., a Nevada corporation (the "Company") for
the benefit of MVP 3, LP, a Delaware limited partnership, Xxxx Xxxxxx, an
individual, Xxxxxx Xxxxx, an individual, and Xxxxx Xxxxxxx, an individual and
Xxxxxxx X. Xxxx, M.D., an individual (individually a "Shareholder" and
collectively, the "Shareholders").
BACKGROUND
Pursuant to certain other agreements between the Company and the
Shareholders, the Company has agreed to grant to the Shareholders certain
registration rights, as more fully set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1.Registration Rights.
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1.1 Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
(b) "Common Stock" shall mean the common stock, par value $0.001 per
share, of the Company.
(c) "Form S-1, Form SB-1, Form S-2, Form SB-2 and Form S-3" shall mean
Form S-1, Form SB-1, Form S-2, Form SB-2 or Form S-3, respectively, promulgated
by the Commission or any substantially similar form then in effect.
(d) The terms "Register", "Registered" and "Registration" refer to a
registration effected by preparing and filing a Registration Statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such Registration Statement.
(e) "Registrable Securities" shall mean the Shares so long as such shares
are ineligible for sale under subparagraph (k) of Rule 144.
(f) "Registration Expenses" shall mean all expenses incurred by the
Company in complying with Section 2, including, without limitation, all federal
and state registration, qualification and filing fees, printing expenses, fees
and disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such Registration
and the reasonable fees and disbursements of counsel for the Selling
Shareholders, as selling shareholders.
(g) "Registration Statement" shall mean Form S-1, Form SB-1, Form S-2,
Form SB-2 or Form S-3, whichever is applicable.
(h) "Restriction Termination Date" shall mean, with respect to any
Registrable Securities, the earliest of (i) the date that such Registrable
Securities shall have been Registered and sold or otherwise disposed of in
accordance with the intended method of distribution by the seller or sellers
thereof set forth in the Registration Statement covering such securities or
transferred in compliance with Rule 144, and (ii) the date that an opinion of
counsel to the Company containing reasonable assumptions (which opinion shall be
subject to the reasonable approval of counsel to any affected Shareholder) shall
have been rendered to the effect that the restrictive legend on the Shares can
be properly removed and such legend shall have been removed.
(i) "Rule 144" shall mean Rule 144 promulgated by the Commission pursuant
to the Securities Act.
(j) "Shareholders" shall mean, collectively, the Shareholders, their
assignees and transferees, and individually, a Shareholder and any transferee or
assignee of such Shareholder.
(k) "Securities Act" shall mean the Securities Act of 1933, as amended.
(l) "Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities pursuant to this
Agreement.
(m) "Selling Shareholders" shall mean a holder of Registrable Securities
who requests Registration under Section 2 herein.
(n) "Shares" shall mean the Common Stock issuable to the Shareholders
pursuant to the Stock Purchase Agreements.
1.2 Required Registration. If the Company shall be requested by holders
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of at least 10% of the total Registrable Securities outstanding that the Company
register all or part of such Shareholders' Registrable Securities, then the
Company shall promptly, but in no event later than ten (10) days after its
receipt of such request, give written notice of such proposed Registration to
all Shareholders, and thereupon the Company shall promptly use its best efforts
to effect the Registration of the Registrable Securities that the Company has
been requested to Register for disposition as described in the request of such
holders of Shares and in any response received from any of the holders of Shares
within ten (10) days or such longer period as shall be set forth in the notice,
after the giving of the written notice by the Company; provided, however, that
the Company shall not be obligated to effect any Registration except in
accordance with the following provisions:
(a) The Company shall not be obligated to file and cause to become
effective more than three (3) registration statement in which Registrable
Securities are Registered pursuant to this Section 1.2; provided, however, that
the registration of Registrable Securities on a Form S-3 or any successor form
where the gross proceeds from the sale of such securities are anticipated to be
at least $250,000 shall not be counted towards such three (3) registration
statement limit.
(b) Notwithstanding the foregoing, the Company may include in each such
Registration requested pursuant to this Section 1.2 any authorized but unissued
shares of Common Stock (or authorized treasury shares) for sale by the Company
or any issued and outstanding shares of Common Stock for sale by others,
provided, however, that, if the number of shares of Common Stock so included
pursuant to this clause (b) exceeds the number of Registrable Securities
requested by the holders of Shares requesting such Registration, then such
Registration shall be deemed to be a Registration in accordance, with and
pursuant to Section 1.3; and provided further, however, that the inclusion of
such previously authorized but unissued shares of Common Stock by the Company or
issued and outstanding shares of Common Stock by others in such Registration
shall not prevent the holders of Shares requesting such Registration from
registering the entire number of Registrable Securities requested by them.
(c) The Company shall not be required to file a registration statement
pursuant to this Section 1: (i) within six (6) months after any other
registration by the Company (other than under "Excluded Forms," as defined in
Section 1.3 (a) below) or (ii) for six (6) months after the request for
registration under this Section 1.2 if the Company is then engaged in
negotiations regarding a material transaction which has not otherwise been
publicly disclosed, or such shorter period ending on the date, whichever first
occurs, that such transaction is publicly disclosed, abandoned or consummated.
1.3 Piggyback Registration.
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(a) Each time that the Company proposes to Register a public offering
solely of its Common Stock, other than pursuant to a Registration Statement on
Form S-4 or Form S-8 or similar or successor forms (collectively, "Excluded
Forms"), the Company shall promptly give written notice of such proposed
Registration to all holders of Shares, which shall offer such holders the right
to request inclusion of any Registrable Securities in the proposed Registration.
(b) Each holder of Shares shall have ten (10) days or such longer period
as shall be set forth in the notice from the receipt of such notice to deliver
to the Company a written request specifying the number of shares of Registrable
Securities such holder intends to sell and the holder's intended plan of
disposition.
(c) In the event that the proposed Registration by the Company is, in
whole or in part, an underwritten public offering of securities of the Company,
any request under Section 1.3(b) may specify that the Registrable Securities be
included in the underwriting on the same terms and conditions as the shares of
Common Stock, if any, otherwise being sold through underwriters under such
Registration.
(d) Upon receipt of a written request pursuant to Section 1.3(b), the
Company shall promptly use its best efforts to cause all such Registrable
Securities to be Registered, to the extent required to permit sale or
disposition as set forth in the written request.
(e) Notwithstanding the foregoing, if the managing underwriter of an
underwritten public offering, determines and advises in writing that the
inclusion of all Registrable Securities proposed to be included in the
underwritten public offering, together with any other issued and outstanding
shares of Common Stock proposed to be included therein by holders other than the
holders of Registrable Securities (such other shares hereinafter collectively
referred to as the "Other Shares"), would interfere with the successful
marketing of the securities proposed to be included in the underwritten public
offering, then the number of such shares to be included in such underwritten
public offering shall be reduced, and shares shall be excluded from such
underwritten public offering in a number deemed necessary by such managing
underwriter, first by excluding shares held by the directors, officers,
employees and founders of the Company, and then, to the extent necessary, by
excluding Registrable Securities participating in such underwritten public
offering, pro rata, based on the number of shares of Registrable Securities each
such holder proposed to include.
(f) All Shares that are not included in the underwritten public offering
shall be withheld from the market by the holders thereof for a period, not to
exceed 6 months following a public offering, that the managing underwriter
reasonably determines as necessary in order to effect the underwritten public
offering. The holders of such Shares shall execute such documentation as the
managing underwriter reasonably requests to evidence this lock-up.
1.4 Preparation and Filing. If and whenever the Company is under an
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obligation pursuant to the provisions of this Section 1 to use its best efforts
to effect the Registration of any Registrable Securities, the Company shall, as
expeditiously as practicable:
(a) prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities and use its best efforts to cause such
Registration Statement to become and remain effective in accordance with Section
1.4(b) hereof, keeping each Selling Shareholder advised as to the initiation,
progress and completion of the Registration;
(b) prepare and file with the Commission such amendments and supplements
to such Registration Statements and the prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective for nine
months and to comply with the provisions of the Securities Act with respect to
the sale or other disposition of all Registrable Securities covered by such
registration statement;
(c) furnish to each Selling Shareholder such number of copies of any
summary prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as such Selling Shareholder may reasonably request in order to facilitate the
public sale or other disposition of such Registrable Securities;
(d) use its best efforts to register or qualify the Registrable Securities
covered by such registration statement under the securities or blue sky laws of
such jurisdictions as each Selling Shareholder shall reasonably request and do
any and all other acts or things which may be necessary or advisable to enable
such holder to consummate the public sale or other disposition in such
jurisdictions of such Registrable Securities; provided, however, that the
Company shall not be required to consent to general service of process, qualify
to do business as a foreign corporation where it would not be otherwise required
to qualify or submit to liability for state or local taxes where it is not
liable for such taxes; and
(e) at any time when a prospectus covered by such Registration Statement
is required to be delivered under the Securities Act within the appropriate
period mentioned in Section 1.4(b) hereof, notify each Selling Shareholder of
the happening of any event as a result of which the prospectus included in such
Registration, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing and, at the request of such seller, prepare, file and furnish to
such seller a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
Shareholders of such shares, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statement therein not misleading in the
light of the circumstances then existing.
1.5 Expenses. The Company shall pay all Registration Expenses incurred by
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the Company in complying with this Section 1; provided, however, that all
underwriting discounts and selling commissions applicable to the Registrable
Securities covered by registrations effected pursuant to Section 1.2 hereof
shall be borne by the seller or sellers thereof, in proportion to the number of
Registrable Securities sold by such seller or sellers.
1.6 Information Furnished by Shareholder. It shall be a condition
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precedent to the Company's obligations under this Agreement as to any Selling
Shareholder that each Selling Shareholder furnish to the Company in writing such
information regarding such Selling Shareholder and the distribution proposed by
such Selling Shareholder as the Company may reasonably request.
1.7 Indemnification.
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1.7.1 Company's Indemnification of Shareholders. The Company shall
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indemnify each Selling Shareholder, each of its officers, directors and
constituent partners, and each person controlling such Selling Shareholder, and
each underwriter thereof, if any, and each of its officers, directors,
constituent partners, and each person who controls such underwriter, against all
claims, losses, damages or liabilities (or actions in respect thereof) suffered
or incurred by any of them, to the extent such claims, losses, damages or
liabilities arise out of or are based upon any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus or any related
Registration Statement incident to any such Registration, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation by
the Company of any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to actions or inaction required of the
Company in connection with any such Registration; and the Company will reimburse
each such Selling Shareholder, each such underwriter, each of their officers,
directors and constituent partners and each person who controls any such Selling
Shareholder or underwriter, for any legal and any other expenses as reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action; provided, however, that the indemnity contained in
this Section 1.7.1 shall not apply to amounts paid in settlement of any such
claim, loss, damage, liability or action if settlement is effected without the
consent of the Company (such consent shall not unreasonably be withheld); and
provided, however, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based upon any untrue statement or omission based upon written information
furnished to the Company by such Selling Shareholder, underwriter, controlling
person or other indemnified person and stated to be for use in connection with
the offering of securities of the Company.
1.7.2 Selling Shareholder's Indemnification of Company. Each Selling
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Shareholder shall indemnify the Company, each of its directors and officers,
each underwriter, if any, of the Company's Registrable Securities covered by a
Registration Statement each person who controls the Company or such underwriter
within the meaning of the Securities Act and each other Selling Shareholder,
each of its officers, directors and constituent partners and each person
controlling such other Selling Shareholder, against all claims, losses, damages
and liabilities (or actions in respect thereof) suffered or incurred by any of
them and arising out of or based upon any untrue statement (or alleged untrue
statement) of a material fact contained in such Registration Statement or
related prospectus, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by such Selling Shareholder of any rule
or regulation promulgated under the Securities Act applicable to such Selling
Shareholder and relating to actions or inaction required of such Selling
Shareholder in connection with the Registration of the Registrable Securities
pursuant to such Registration Statement; and will reimburse the Company, such
other Selling Shareholders, such directors, officers, partners, persons,
underwriters and controlling persons for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action; such indemnification and reimbursement
shall be to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
Registration Statement or prospectus in reliance upon and in conformity with
written information furnished to the Company by such Selling Shareholder and
stated to be specifically for use in connection with the offering of Registrable
Securities.
1.7.3 Indemnification Procedure. Promptly after receipt by an
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indemnified party under this Section 1.7 of notice of the commencement of any
action which may give rise to a claim for indemnification hereunder, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 1.7, notify the indemnifying party in
writing of the commencement thereof and generally summarize such action. The
indemnifying party shall have the right to participate in and to assume the
defense of such claim, and shall be entitled to select counsel for the defense
of such claim with the approval of any parties entitled to indemnification,
which approval shall not be unreasonably withheld. Notwithstanding the
foregoing, the parties entitled to indemnification shall have the right to
employ separate counsel (reasonably satisfactory to the indemnifying party) to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified parties unless the named parties to
such action or proceedings 'include both the indemnifying party and the
indemnified parties and the indemnifying party or such indemnified parties shall
have been advised by counsel that there are one or more legal defenses available
to the indemnified parties which are different from or additional to those
available to the indemnifying party (in which case, if the indemnified parties
notify the indemnifying party in writing that they elect to employ separate
counsel at the reasonable expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action or
proceeding on behalf of the indemnified parties, it being understood, however,
that the indemnifying party shall not, in connection with any such action or
proceeding or separate or substantially similar or related action or proceeding
in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate counsel at any time for all indemnified parties, which counsel shall be
designated in writing by the Shareholders of a majority of the Registrable
Securities).
1.7.4 Contribution. If the indemnification provided for in this
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Section 1.7 from an indemnifying party is unavailable to an indemnified party
hereunder in respect to any losses, claims, damages, liabilities or expenses
referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Indemnifying party and indemnified party in connection with the statements
or omissions which result in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or indemnified party
and the parties' relative intent, knowledge, access to information supplied by
such indemnifying party or indemnified party and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action,
suit, proceeding or claim.
2. Covenants of the Company.
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The Company agrees to:
(a) Notify the holders of Registrable Securities included in a
Registration Statement of the issuance by the Commission of any stop order
suspending the effectiveness of such Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible time.
(b) If the Common Stock is then listed on a national securities exchange,
use its best efforts to cause the Registrable Securities to be listed on such
exchange. If the Common Stock is not then listed on a national securities
exchange, use its commercially reasonable efforts to facilitate the reporting of
the Registrable Securities on NASDAQ.
(c) Take all other reasonable actions necessary to expedite and facilitate
disposition of the Registrable Securities by the holders thereof pursuant to the
Registration Statement.
(d) With a view to making available to the holders of Registrable
Securities the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the Commission that may at any time permit the
Shareholders to sell securities of the Company to the public without
registration, the Company, after it has become obligated to file periodic or
other reports pursuant to Section 13 of the 1934 Act agrees to:
(i) file with the Commission in a timely manner all reports and other documents
required of the Company under the Securities Act and the Securities and Exchange
Act of 1934 (the "1934 Act"); and
(ii) furnish to each holder of Shares, so long as such holder of Shares
owns any Shares, forthwith upon written request (a) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 (at any
time after 90 days after the effective date of the first registration statement
filed by the Company), the Securities Act and the 1934 Act (at any time after it
has become subject to such reporting requirements), (b) a copy of the most
recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company and (c) such other information as may be
reasonably requested and as is publicly available in availing the holders of
Shares of any rule or regulation of the Commission which permits the selling of
any such securities without registration.
(e) Prior to the filing of the Registration Statement or any amendment
thereto (whether pre-effective or post-effective), and prior to the filing of
any prospectus or prospectus supplement related thereto, the Company will
provide each Selling Shareholder with copies of all pages thereto, if any, which
reference such Selling Shareholder.
3. Miscellaneous.
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(a) Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
or sent by registered mail, return receipt requested, addressed (i) if to the
Company, at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000 and (ii) if to a
Shareholder, at the address set forth in the Company's records, or at such other
address as each such party furnishes by notice given in accordance with this
Section 3(a);
(b) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
will not operate as a waiver thereof. No waiver will be effective unless and
until it is in writing and signed by the party giving the waiver;
(c) Governing Law; Jurisdiction; Jury Trial. 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 of Florida. Each party hereby irrevocably
submits to the jurisdiction of the Circuit Court for Xxxxxxx 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.
(d) In the event that any provision of this Agreement is invalid or
unenforceable under any applicable or rule of law, then such provision shall be
deemed inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform with such statute or rule of law. Any provision
hereof which may prove invalid or unenforceable under any law shall not affect
the validity or enforceability of any other provision hereof,
(e) This Agreement may be assigned by the Shareholders to any transferee
of the Shareholder's Shares;
(f) This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof; and
(g) This Agreement may be executed in two or more counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which together shall be deemed to be one and the same Agreement.
IN WITNESS WHEREOF, the Company has executed this Agreement for the benefit
of the Shareholders by its duly authorized officer 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:
_______________________________
Xxxx X. Xxxxxx
_______________________________
Xxxxxx X. Xxxxx
_______________________________
Xxxxx X. Xxxxxxx
_______________________________
Xxxxxxx X. Xxxx, M.D.
