neo062105s8
As filed with the Securities and Exchange Commission on June 21, 2005
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
Under the Securities Act of 1933
NEOGENOMICS, INC.
(Name of Registrant in its charter)
NEVADA 74-2897368
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
12701 Commonwealth Drive, Suite 9
Fort Myers, Florida 33913
(239) 768-0600
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
NEOGENOMICS, INC. 2003 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
Robert P Gasparini, President
12701 Commonwealth Drive, Suite 9
Fort Myers, Florida 33913
(239) 768-0600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
Clayton E. Parker, Esq.
Kirkpatrick & Lockhart Nicholson Graham LLP
201 South Biscayne Boulevard, Suite 2000
Miami, Florida 33131
Telephone: (305) 539-3300
Telecopier: (305) 358-7095
CALCULATION OF REGISTRATION FEE
================================== ====================== ===================== ======================= ====================
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities To be Price per Offering Registration
to be Registered Registered Share (1) Price(1) Fee(1)
Common Stock, $.001 par value 2,249,825 $0.34 $764,941 $90.03
Total 2,249,825 $0.34 $764,941 $90.03
(1) Pursuant to Rule 457(h)(1) of the Securities Exchange Act of 1934, the
proposed maximum offering price per share, proposed maximum aggregate
offering price and amount of registration fee were computed based upon the
average of the high and low prices of the shares of Common Stock on June
17, 2005.
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PART I
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information) will be sent or given to employees
as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Act"). Such documents need not be filed with the Securities and Exchange
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424. These documents, which include the
statement of availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Act.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been previously filed by NeoGenomics, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
and are hereby incorporated by reference into this Registration Statement as of
their respective dates:
(a) The Annual Report of the Company on Form 10-KSB for the fiscal year
ended December 31, 2004, filed with the Commission on April 15, 2005.
(b) Form 8-K dated March 29, 2005 disclosing the execution of a definitive
loan agreement, filed with the Commission on March 30, 2005.
(c) Form 10-QSB for the three-month period ending March 31, 2005, filed
with the Commission on April 29, 2005.
(d) Form 8-K dated June 6, 2005 disclosing the execution of a definitive
standby equity distribution agreement, filed with the Commission on
June 8, 2005.
(e) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
registrant document referred to in (a) above.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation eliminate liability of its
directors and officers for breaches of fiduciary duties as directors and
officers, except to the extent otherwise required by the Nevada Revised Statutes
and where the breach involves intentional misconduct, fraud, or a knowing
violation of the law.
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Nevada Revised Statutes 78.750, 751, and 752 have similar provisions that
provide for discretionary and mandatory indemnification of officers, directors,
employees, and agents of a corporation. Under these provisions, such persons may
be indemnified by a corporation against expenses, including attorney's fees,
judgment, fines and amounts paid in settlement, actually and reasonably incurred
by him in connection with the action, suit or proceeding, if he acted in good
faith and in a manner which he reasonably believed to be in or opposed to the
best interests of the corporation and with respect to any criminal action or
proceeding, had no reasonable cause to any action, suit or proceeding, had no
reasonable cause to believe his conduct was unlawful.
To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding, or in defense of any claim, issue or matter, he must be indemnified
by a corporation against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the defense.
Any indemnification, unless ordered by a court or advanced by a
corporation, must be made only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances. The determination must be made:
o By the stockholders;
o By the board of directors by majority vote of a quorum consisting of
directors who were not parties to that act, suit or proceeding;
o If a majority vote of a quorum consisting of directors who were not
parties to the act, suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion; or
o If a quorum consisting of directors who were not parties to the act, suit
or proceeding cannot be obtained, by independent legal counsel in a written
opinion;
o Expenses of officers and directors incurred in defending a civil or
criminal action, suit or proceeding must be paid by the corporation as they are
incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by the director or officer to repay
the amount if it is ultimately determined by a court of competent jurisdiction
that he is not entitled to be indemnified by a corporation.
o To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, a corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person
connected with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
4.1(1) NeoGenomics, Inc. 2003 Equity Incentive Plan
5.1(1) Opinion of Burton, Bartlett & Glogovac
23.1(1) Consent of Kingery & Crouse, P.A.
23.2(2) Consent of Burton, Bartlett & Glogovac
(1) Provided herewith.
(2) Incorporated by reference to Exhibit 5.1.
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ITEM 9. UNDERTAKINGS.
(a) We hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this registration statement (or the most recent post-effective
amendment hereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low and high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by our company pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) We hereby undertake that, for purposes of determining any liability
under the Securities Act of 1933, each filing of our annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and persons controlling our
company pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by our company of expenses incurred or paid by a director, officer or
controlling person of our company in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, our company will, unless in the
opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by us is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the State of Florida, on June 20, 2005.
NEOGENOMICS, INC.
Date: June 20, 2005 By: /s/ Robert P. Gasparini
Robert P. Gasparini
President and Principal Executive Officer
Date: June 20, 2005 By: /s/ Steven C. Jones
Steven C. Jones
Acting Principal Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-8 has been signed by the following persons
in the capacities and on the dates indicated below:
Signatures Title Date
/s/ Michael T. Dent Chairman of the Board June 20, 2005
Michael T. Dent, M.D.
/s/ Robert P. Gasparini Director June 20, 2005
Robert P. Gasparini
/s/ Steven C. Jones Director June 20, 2005
Steven C. Jones
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