Exhibit
10.1
Execution
Copy
COMMON STOCK PURCHASE
AGREEMENT
This Common Stock Purchase Agreement (this
“ Agreement ”) is made as of July 24, 2009, by
and between NeoGenomics, Inc., a Nevada corporation (the “
Company ”), and Abbott Laboratories, an Illinois
corporation (“ Abbott ”).
WITNESSETH
WHEREAS , subject to the terms and conditions set forth
in this Agreement, the Company desires to issue and sell to Abbott,
and Abbott desires to purchase from the Company, 3,500,000 shares
(the “ Shares ”) of common stock of the Company,
$0.001 par value per share (the “ Common Stock
”).
NOW, THEREFORE , in consideration of the mutual covenants
contained in this Agreement, and for other good and valuable
consideration the receipt and adequacy of which are hereby
acknowledged, the Company and Abbott agree as follows:
In addition to the terms defined elsewhere in
this Agreement, for all purposes of this Agreement, the following
terms have the meanings indicated in this Section 1
:
“ Commission ” means
the Securities and Exchange Commission.
“ Common Stock ” shall have
the meaning set forth in the Recital hereto.
“ Disclosure Schedules
” means the disclosure schedules of the Company delivered
concurrently herewith.
“ Environmental Laws ” shall
have the meaning set forth in Section 4.11 of this
Agreement.
“ Exchange Act ” means the
Securities Exchange Act of 1934, as amended.
“ Indemnified Liabilities ”
shall have the meaning set forth in Section 7 of this
Agreement.
“ Indemnitees ” shall have
the meaning set forth in Section 7 of this
Agreement.
“ Person ” means an
individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
“ Registration Rights Agreement
” means the Registration Rights Agreement of even date
herewith between the Company and Abbott.
“ SEC ” means the United
States Securities and Exchange Commission.
“ SEC Reports ” shall have
the meaning set forth in Section 4.6 hereto.
“ Securities Act ” means the
Securities Act of 1933, as amended.
“ Subsidiary ” means
any corporation, partnership, limited liability company, joint
venture or other legal entity of which the Company owns, directly
or indirectly, 50% or more of the stock or other equity
interests.
“ Transaction Documents ”
means this Agreement and the Registration Rights
Agreement.
Section
2.
Sale and Purchase of
Stock
Subject to the terms and conditions of this
Agreement, Abbott agrees to purchase and the Company agrees to sell
and issue to Abbott the Shares for an aggregate purchase price of
$4,767,000 (the “ Purchase Price ”).
3.1.
Closing . The purchase, sale and issuance of the
Shares shall take place at a closing (the “ Closing
”) to be held at the offices of K&L Gates, LLP, 200 S.
Biscayne Blvd., Suite 3900, Miami, Florida, 33131 at 10:00 a.m.,
Eastern time, on the date hereof, or at such other place, time
and/or date as may be jointly designated by the Company and Abbott
(the “ Closing Date ”).
The Purchase Price for the Shares shall be paid
by Abbott to the Company at the Closing by wire transfer of
immediately available funds to an account or accounts to be
designated by the Company. Within three (3) business
days following the Closing, the Company will deliver to Abbott a
certificate registered in Abbott’s name representing the
Shares.
Section
4.
Representations and Warranties of the Company
Except as set forth under the corresponding
section of the Disclosure Schedules, which Disclosure Schedules
shall be deemed a part hereof, the Company hereby makes the
representations and warranties set forth below to
Abbott:
4.1.
Organization and Qualification . The Company and
each of its Subsidiaries is an entity duly incorporated or
otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization
(as applicable), with the requisite power and authority to own and
use its properties and assets and to carry on its business as
currently conducted. Each of the Company and its
Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the
case may be, could not reasonably be expected to result in (i) a
material adverse effect on the legality, validity or enforceability
of any Transaction Document or the authority or ability of the
Company to perform its obligations under any Transaction Document,
or (ii) a material adverse effect on the operations, results of
operations, assets, business, properties or financial condition of
the Company and its Subsidiaries, taken as a whole (any of (i) or
(ii), a “ Material Adverse Effect
”). The Company has no Subsidiaries other than as
set forth on Schedule 4.1 of the Disclosure
Schedule.
4.2.
Authorization; Enforcement . The Company has the
requisite corporate power and authority to enter into and to
consummate the transactions contemplated by each of the Transaction
Documents and otherwise to carry out its obligations
thereunder. The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of
the transactions contemplated thereby have been duly authorized by
all necessary action on the part of the Company. Each
Transaction Document has been (or upon delivery will have been)
duly executed by the Company and, when delivered in accordance with
the terms hereof, will constitute the valid and binding obligation
of the Company enforceable against the Company in accordance with
its terms except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable
law.
4.3.
Capitalization . As of July 16, 2009, the
authorized capital stock of the Company consists of (i) 100,000,000
shares of Common Stock, of which 33,077,424 shares were issued and
outstanding and (ii) 10,000,000 shares of Preferred Stock, $0.001
par value, of which no shares were issued and
outstanding. All such outstanding shares have been, or
upon issuance will be, validly issued and are fully paid and
nonassessable. Except as disclosed on Schedule
4.3 of the Disclosure Schedule, (i) no shares of the
Company’s capital stock are subject to preemptive rights or
any other similar rights or any liens or encumbrances suffered or
permitted by the Company, (ii) there are no outstanding debt
securities, (iii) there are no outstanding options, warrants,
scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company or any
of its Subsidiaries, or contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or
may become bound to issue additional shares of capital stock of the
Company or any of its Subsidiaries or options, warrants, scrip,
rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into,
any shares of capital stock of the Company or any of its
Subsidiaries, (iv) there are no agreements or arrangements under
which the Company or any of its Subsidiaries is obligated to
register the sale of any of their securities under the Securities
Act (except the Registration Rights Agreement, the Registration
Rights Agreement dated November 5, 2008 between the Company and
Fusion Capital Fund II, LLC, the Amended and Restated Registration
Rights Agreement dated March 23, 2005 among the Company, Aspen
Select Healthcare, LP, John Elliot, Steven Jones, Larry Kunert and
Michael T. Dent, M.D., and the Registration Rights Agreement dated
March 30, 2006 among the Company, Aspen Select Healthcare, LP and
Steven C. Jones), (v) there are no outstanding securities or
instruments of the Company or any of its Subsidiaries which contain
any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or
any of its Subsidiaries is or may become bound to redeem a security
of the Company or any of its Subsidiaries, (vi) there are no
securities or instruments containing anti-dilution or similar
provisions that will be triggered by the issuance of the Securities
as described in this Agreement and (vii) the Company does not have
any stock appreciation rights or "phantom stock" plans or
agreements or any similar plan or agreement. The Company
has furnished or otherwise made available to Abbott true and
correct copies of the Company's articles of incorporation, as
amended and as in effect on the date hereof, and the Company's
by-laws, as amended and as in effect on the date hereof, and copies
of any documents containing the material rights of the holders of
securities convertible into or exercisable for Common Stock (or
forms of such documents). Upon issuance and payment
therefor in accordance with the terms and conditions of this
Agreement, the Shares shall be validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with
respect to the issue thereof.
4.4.
No Conflicts . The execution, delivery and
performance of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated
thereby do not and will not (i) conflict with or violate any
material provision of the Company’s or any Subsidiary’s
certificate or articles of incorporation, bylaws or other
organizational or charter documents, (ii) conflict with, or
constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of
any agreement, indenture or instrument to which the Company or any
of its Subsidiaries is a party, or (iii) conflict with or result in
a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is
subject, or by which any property or asset of the Company or a
Subsidiary is bound or affected, except in the case of clause (ii)
or (iii), such as could not reasonably be expected to result in a
Material Adverse Effect.
4.5.
Brokers’ Fees . The Company has no
liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions
contemplated by this Agreement.
4.6.
SEC Reports . The Company has made available to
Abbott, including through the SEC EDGAR system, complete and
accurate copies of each report and registration statement filed by
the Company with the SEC between January 1, 2007 and the date of
this Agreement (the “ SEC Reports
”). At the time it was filed with the SEC (or, if
amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) each of the SEC Reports
complied in all material respects with the applicable requirements
of the Exchange Act or the Securities Act, as
applicable.
4.7.
No Material Changes . Since June 30, 2009, except
as specifically disclosed in the SEC Reports, there has been no
event, occurrence or development that has had or that would
reasonably be expected to result in a Material Adverse Effect,
except as has been reasonably cured by the Company.
4.8.
Litigation . Except as disclosed on Schedule
4.8 of the Disclosure Schedule, there is no action, suit or
proceeding pending or, to the knowledge of the Company, threatened
against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator,
governmental or administrative agency or regulatory authority which
(i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Shares or
(ii) could reasonably be expected to result in a Material Adverse
Effect.
4.9
Tax Status . The Company and each of its
Subsidiaries has made or filed all federal and state income and all
other material tax returns, reports and declarations required by
any jurisdiction to which it is subject (unless and only to the
extent that the Company and each of its Subsidiaries has set aside
on its books provisions reasonably adequate for the payment of all
unpaid and unreported taxes) and has paid all taxes and other
governmental assessments and charges that are material in amount,
shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and has
set aside on its books provision reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which
such returns, reports or declarations apply. There are
no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the
Company know of no basis for any such claim.
4.10.
Intellectual Property Rights . The Company and its
Subsidiaries own or possess adequate rights or licenses to use all
material trademarks, trade names, service marks, service mark
registrations, service names, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade
secrets and other similar rights necessary to conduct their
respective businesses as now conducted. None of the
Company's material trademarks, trade names, service marks, service
mark registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, government
authorizations, trade secrets or other intellectual property rights
have expired or terminated, or, by the terms and conditions
thereof, will expire or terminate within two (2) years from the
date of this Agreement. The Company and its Subsidiaries do not
have any knowledge of any infringem
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