EXECUTION COPY
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made as of April 15,
2003 by and between NeoGenomics, Inc., a Nevada corporation, (the "Company"),
NeoGenomics, Inc., a Florida corporation and a wholly-owned subsidiary of the
Company (the "Subsidiary"), and Xxxx Xxxxxxx, an individual (the "Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Common Stock. Subject to the terms
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and conditions of this Agreement, and in reliance upon the representations and
warranties and covenants contained herein, the Investor agrees to purchase at
the Closing, and the Company agrees to sell and issue to the Investor at the
Closing (as defined herein), 1,541,261 shares of the Company's Common Stock,
$.001 par value (the "Common Stock") for the aggregate purchase price of
$15,412.61.
1.2 Closing. The purchase and sale of the Common Stock shall take
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place at the offices of Membrado & Montell, LLP, New York, New York, at 10:00
A.M., on April 15, 2003 or at such other time and place as the Company and the
Investor agree upon orally or in writing (which time and place are designated as
the "Closing"). At the Closing, the Company shall deliver to the Investor
certificates (in the denominations requested by the Investor) representing the
Common Stock which the Investor is purchasing against delivery to the Company by
the Investor of the full purchase price therefor, which shall be paid by
cashier's or bank check payable to the Company's order or by wire transfer to
such account as the Company shall designate.
1.3 Requirement of Purchase Price Delivery. No purchase of any
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shares of Common Stock hereof shall be deemed to have been made pursuant to this
Agreement and no rights hereunder shall inure to the Investor, unless the total
purchase price for the Common Stock is delivered at the Closing pursuant to
Section 1.2 hereof.
2. Representations and Warranties of the Company. The Company and the
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Subsidiary hereby represents and warrants to the Investor that:
2.1 Organization and Good Standing. Each of the Company and the
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Subsidiary is a corporation duly organized, validly existing, and in good
standing under the laws of its state of organization and has all requisite
corporate power and authority to carry on its business as now conducted and as
proposed to be conducted. Each of the Company and the Subsidiary is qualified
to do business in each jurisdictions where such qualification is required,
except where the lack of such qualification would not have a material adverse
effect on the business or assets of the Company and the Subsidiary, taken as a
whole.
2.2 Capitalization. The current capitalization of the Company
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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 after giving effect to the
transactions contemplated hereby.
(b) On a Fully-Diluted Basis: Except for (i) 40,000 shares
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which 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.
2.3 Subsidiaries. Except for the Subsidiary, the Company does not
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presently own or control, directly or indirectly, any interest in any other
corporation, association, or other business entity.
2.4 Authorization. All corporate action on the part of the
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Company and the Subsidiary, and their respective officers, directors, and
shareholders necessary for the authorization, execution, and delivery of this
Agreement and the agreements attached as exhibits hereto (such agreements being
herein referred to as the "Ancillary Agreements"), the performance of all
obligations of the Company and/or the Subsidiary under each of the Agreement and
the Ancillary Agreements, and the authorization, issuance (or reservation for
issuance), and delivery of the Common Stock being sold hereunder has been taken
or will be taken prior to the Closing, and this Agreement and the Ancillary
Agreements constitute (or will constitute upon the execution thereof) the valid
and legally binding obligations of the Company and/or the Subsidiary, as the
case may be, and each of the other parties thereto (other than the Investor),
enforceable in accordance with their respective terms. The Company and the
Subsidiary has the requisite corporate power to enter into and perform its
obligations under this Agreement and the Ancillary Agreements.
2.5 Valid Issuance of Common Stock.
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(a) The Common Stock which is being purchased by the
Investor hereunder, when issued, sold, and delivered in accordance with the
terms hereof or thereof, will be duly and validly issued, fully paid and
nonassessable free and clear of any taxes, liens, claims, preemptive rights or
similar rights or encumbrances imposed by or through the Company or under law
and, assuming the accuracy of the representations of the Investor in this
Agreement, will be issued in compliance with all applicable federal and state
securities laws.
(b) The outstanding shares of Common Stock are all duly and
validly authorized and issued, fully paid and nonassessable, were not issued in
violation of the terms of any contract binding upon the Company, and were issued
in compliance with all applicable federal and state securities laws.
2.6 Governmental Consents. No consent, approval, order, or
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authorization of, or registration, qualification, designation, declaration, or
filing with, any federal, state, local, or provincial governmental authority on
the part of the Company or the Subsidiary is required in connection with the
execution of this Agreement and the consummation of the transactions
contemplated hereby or thereby, other than filings required under federal and
state securities laws.
2.7 Compliance with Other Instruments.
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(a) Each of the Company and the Subsidiary is in compliance
with each, and is not in violation or default of any, provision of its charter
documents or bylaws, or judgment, order, writ, or decree, or any material
contract, agreement, instrument, or commitment to which it is a party or by
which it is bound, or material provision of any statute, law, rule, or
regulation applicable to the Company or the Subsidiary, its assets, or its
business. There is no term or provision in any of the foregoing documents and
instruments which materially adversely affects the business (as now conducted or
as proposed to be conducted), assets or financial condition of the Company or
the Subsidiary. The execution, delivery, and performance of this Agreement or
any of the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby will not result in any such violation or be in
conflict with or constitute, with or without the passage of time or giving of
notice, either a default under any such provision, instrument, judgment, order,
writ, decree, or contract or an event that results in the creation or any lien,
charge, or encumbrance upon any assets of the Company or the Subsidiary. There
are no outstanding puts, calls, commitments, anti-dilution or ratchet
protections, proxy or voting trust agreements, preemptive, change of control or
similar rights or other agreements to which the Company or the Subsidiary is a
party or by which the Company or the Subsidiary is otherwise bound which relate
to, restrict or affect any of the capital stock of the Company or the Subsidiary
that any person or entity would be entitled to exercise or invoke as a result
of, or in connection with, the purchase by the Investor of the Common Stock or
which are otherwise in effect.
2.8 Registration Rights. Except for the registration rights
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provided to the Investor, neither the Company nor the Subsidiary has granted or
agreed to grant any registration rights, including without limitation any demand
or piggyback rights, to any person or entity.
2.9 Legal Proceedings. Except as set forth on Schedule 2.9, there are
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no actions or proceedings pending or, to the actual knowledge of the Company or
the Subsidiary, threatened against, relating to or affecting the Company or the
Subsidiary.
2.10 Intellectual Property. There is not pending nor, to the Company's
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knowledge, threatened any action, suit, investigation, or proceeding contesting
or challenging the rights of the Company or the Subsidiary in or to any material
item of intellectual property owned or used by the Company or the Subsidiary, in
the conduct of its business (the "Intellectual Property"), or the validity of
any of the Intellectual Property.
2.11 SEC Documents; Financial Statements. Except as set forth on
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Schedule 2.11, the Company is subject to periodic reporting requirements of
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Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and, the Company has timely filed all reports, schedules, forms,
statements and other documents required to be filed by it with the SEC pursuant
to the reporting requirements of the Exchange Act, including material filed
pursuant to Section 13(a) or 15(d) of the Exchange Act (all of the foregoing
including filings incorporated by reference therein being referred to herein as
the "SEC Documents"). As of their respective filing dates, the SEC Documents
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the SEC promulgated thereunder applicable to such
documents, and, as of their respective filing dates, none of the SEC Documents
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC
Documents comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or other
applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with generally accepted accounting
principles ("GAAP") applied on a consistent basis during the periods involved
(except (i) as may be otherwise indicated in such financial statements or the
notes thereto, or (ii) in the case of unaudited interim statements, to the
extent they may not include footnotes or may be condensed or summary
statements), and fairly present in all material respects the financial position
of the Company and its subsidiaries, as of the dates thereof and the results of
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments).
2.12 No Material Adverse Event. Except as listed on Schedule 2.12,
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since September 30, 2002, no material adverse event has occurred or exists with
respect to the Company or its subsidiaries).
3. Representations and Warranties of the Investor. The Investor hereby
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represents and warrants that:
3.1 Authorization. This Agreement constitutes a valid and legally
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binding obligation, enforceable against Investor in accordance with its terms.
3.2 Purchase Entirely for Own Account. This Agreement is made
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with the Investor in reliance upon the Investor's representation to the Company,
which by the Investor's execution of this Agreement the Investor hereby
confirms, that the Common Stock to be received by the Investor will be acquired
for investment for the Investor's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof, and that the
Investor has no present intention of selling, granting any participation in, or
otherwise distributing the same, by executing this Agreement, each Investor
further represents that the Investor does not have any contract, undertaking,
agreement, or arrangement with any person to sell, transfer, or grant
participation to such person or to any third person, with respect to any of the
Securities. The Investor represents that it has full power and authority to
enter into this Agreement.
3.3 Restricted Securities. The Investor understands that the
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shares of Common Stock it is purchasing constitute "restricted securities" under
the federal securities laws inasmuch as they are being acquired from the Company
in a transaction not involving a public offering and that under such laws and
applicable regulations such securities may not be resold without registration
under the Securities Act of 1933, as amended (the "Act"), except in certain
limited circumstances. In this connection, the Investor represents that it is
familiar with Rule 144 under the Act, as presently in effect, and understands
the resale limitations imposed thereby and by the Act.
3.4 Further Limitations on Disposition. Without in any way
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limiting the representations set forth above, the Investor further agrees not to
make any disposition of all or any portion of the Securities unless and until:
(a) there is then in effect a registration statement under
the Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) (i) the Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, the Investor shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the Act.
3.8 Legends. It is understood that the certificates evidencing the
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Common Stock (and the Common Stock issuable upon conversion thereof) may bear
the following legend:
These securities have not been registered under the Securities Act of 1933. They
may not be sold, offered for sale, pledged, or hypothecated in the absence of a
registration statement in effect with respect to the securities under such Act
or an opinion of counsel reasonably satisfactory to the Company that such
registration is not required.
3.9 Accredited Investor. The Investor is an "accredited investor" as
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such term is defined in Rule 501 under the Act.
4. Conditions of Investor's Obligations at Closing. The obligation of the
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Investor under Section 1.1(b) of this Agreement is subject to the fulfillment on
or before the Closing of each of the following conditions, the waiver of which
shall not be effective against the Investor unless consented thereto in writing:
4.1 Representations and Warranties. The representations and
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warranties of the Company and the Subsidiary contained in Section 2 shall be
true on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of such
Closing.
4.2 Performance. The Company shall have performed and complied
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with all agreements, obligations, and conditions contained in this Agreement
that are required to be performed or complied with by it on or before the
Closing.
4.3 Proceedings and Documents. All corporate and other proceedings in
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connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Investor and Investor's counsel, if any, and they shall have received all such
counterpart original and certified or other copies of such documents as they may
reasonably request.
4.4 Blue-Sky Compliance. The Company shall have complied with all
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requirements of federal and state securities or "Blue Sky" laws with respect to
the issuance of the Common Stock to the Investor hereunder.
4.5 Stock Certificates. The Company shall deliver to the Investor at
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the Closing a stock certificate or certificates evidencing the Common Stock.
4.6 Registration Rights Agreement. The Company shall have executed and
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delivered to the Investor the Registration Rights Agreement substantially in the
form attached hereto as Exhibit A.
4.7 Shareholders Agreement. The Company, the Investor, certain other
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investors and Xxxxxxx Xxxx shall have executed and delivered to the Investor the
Shareholders Agreement substantially in the form attached hereto as Exhibit B.
5. Conditions of the Company's Obligations at Closing. The obligations
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of the Company to the Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by the
Investor:
5.1 Representations and Warranties. The representations and
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warranties of the Investor contained in Section 3 shall be true on and as the
Closing with the same effect as though such representations and warranties have
been made on and as of the Closing.
5.2 Payment of Purchase Price. The Investor shall have
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delivered the purchase price specified in Section 1.1.
7. Covenants of the Company and the Subsidiary.
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7.1 Inspection. Each of the Company shall permit the Investor, at
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the Investor's expense, to visit and inspect the Company's and the Subsidiary's
properties, to examine its books of account and records, and to discuss their
respective affairs, finances, and accounts with their respective officers, all
at such reasonable times as may be requested by the Investor; provided,
however, that neither the Company not the Subsidiary shall be obligated pursuant
to this Section 7.1 to provide access to any information which it reasonably
considers to be a trade secret, the disclosure of which the Company reasonably
believes may adversely affect its business.
8. Miscellaneous.
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8.1 Survival of Warranties. The warranties, representations, and
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covenants of the Company and Investor contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investor or the Company.
8.2 Successors and Assigns. The terms and conditions of this
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Agreement shall inure to the benefit of and be binding upon the respective
heirs, legal representatives, successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective heirs, legal representatives,
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
Neither this Agreement nor any of the rights and obligations created hereby can
be assigned by the Company, and any such attempted assignment will be void. Any
Investor can transfer all or any portion of its rights and obligations hereunder
to any other person or entity selected by the Investor who is not a competitor
of the Company.
8.3 Governing Law; Jurisdiction; Jury Trial. The corporate laws of the
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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.
8.4 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 Notices. Unless otherwise provided, any notice required or
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permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties.
8.7 Finder's Fee. Each party represents that it neither is nor
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will be obligated for any finders' fee or commission in connection with this
transaction, except for a payment of 40,000 shares of Common Stock and $4,000
payable by the Company to Technology Capital Group, Inc. The Investor agrees to
indemnify and to hold harmless the Company from any liability for any
commission or compensation in the nature of a finders' fee (and the costs and
expenses of defending against such liability or asserted liability) for which
the Investor or any of its officers, partners, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless the Investor from
any liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability) for which the Company or any of its officers, employees, or
representatives is responsible.
8.8 Expenses. Except as otherwise expressly provided in this
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Agreement, whether or not the transactions contemplated hereby are consummated,
each party will pay its own costs and expenses incurred in connection with the
negotiation, execution, performance and closing of this Agreement and the
transactions contemplated hereby.
8.9 Amendments and Waivers. Any term of this Agreement may be
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amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Investor.
8.10 Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, such provisions shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provisions were so excluded and shall be enforceable in accordance with its
terms.
[Signatures Appear on the Following Page]
IN WITNESS WHEREOF, the undersigned have executed, or caused to be
executed on their behalf by an agent thereunto duly authorized, this Agreement
as of the date first above written.
NEOGENOMICS, INC.
A Nevada Corporation
By:___________________________
Name: Xxxxxxx Xxxx
Title: Chief Executive Officer
NEOGENOMICS, INC.
A Florida Corporation
By:___________________________
Name: Xxxxxxx Xxxx
Title: Chief Executive Officer
The Investor:
________________________________
Xxxx Xxxxxx
Address:
0000 Xxxxxxxxx Xxx
Xxxxxx, XX 00000
