As filedFiled with the Securities and Exchange Commission on October 2, 2017May 10, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORMForm S-3
REGISTRATION STATEMENT
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
OncoCyteOncocyte Corporation
(Exact nameName of registrantRegistrant as specifiedSpecified in its charter)
Charter)
| California | 27-1041563 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification |
1010 Atlantic Avenue, Suite 10215 Cushing
Alameda,Irvine, California 9450192618
(510) 775-0515(949) 409-7600
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
William AnnettJoshua Riggs
President and Chief Executive Officer
OncoCyteOncocyte Corporation
1010 Atlantic Avenue, Suite 10215 Cushing
Alameda,Irvine, California 9450192618
(510) 775-0515(949) 409-7600
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies toto::
Bruce JenettGreg Kramer, Esq.
Andrew LedbetterHaynes and Boone, LLP
DLA Piper LLP (US)30 Rockefeller Plaza, 26th Floor
2000 University AvenueNew York, New York 10112
East Palo Alto, California, 94303(212) 659-7300
Approximate date of commencement of proposed sale to the public:public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Formform are being offered pursuant to dividend or interest reinvestment plans, please check the following box: [ ]box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: [X]box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: [ ]offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. [ ]☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”company” and “emerging growth company” in Rule 12b-212b–2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | ||
| Non-accelerated filer | ☒ | Smaller reporting company | ☒ | ||
| Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. [X]
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Unit(2) | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee(2) | ||||||||||||
| Common stock, no par value | (3 | ) | (4 | ) | (4 | ) | — | |||||||||
| Preferred Stock, no par value | (3 | ) | (4 | ) | (4 | ) | — | |||||||||
| Debt Securities | (3 | ) | (4 | ) | (4 | ) | — | |||||||||
| Warrants | (3 | ) | (4 | ) | (4 | ) | — | |||||||||
| Units | (3 | ) | (4 | ) | (4 | ) | — | |||||||||
| Total | $ | 50,000,000 | $ | 50,000,000 | $ | 6,225 | ||||||||||
☐
The Registrantregistrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrantregistrant shall file a further amendment thatwhich specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. These securitiesThe selling stockholders named in this prospectus may not be soldsell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell nor doesthese securities and it seekis not soliciting an offer to buy these securities in any jurisdictionstate where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED OCTOBER 2, 2017Subject to Completion, dated May 10, 2024
PROSPECTUS
$50,000,000Oncocyte Corporation
5,419,788 Shares of Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may,This prospectus relates to the resale by the selling stockholders named in this prospectus from time to time in one or more offerings, offer and sellof up to $50.0 million in the aggregate5,419,788 shares of our common stock, preferred stock, debt securities, warrants to purchaseno par value per share. These 5,419,788 shares of common stock or preferred stock or debt securities, or any combinationconsist of:
| ● | 5,076,900 shares of common stock (the “PIPE Shares”) that were issued pursuant to the securities purchase agreement, dated as of April 11, 2024, by and among us and the purchasers named therein (the “Purchase Agreement”); and |
| ● | 342,888 shares of common stock (the “Pre-Funded Warrant Shares”) issuable upon the exercise of pre-funded warrants (the “Pre-Funded Warrants”) that were issued pursuant to the Purchase Agreement. |
The PIPE Shares and the Pre-Funded Warrants were issued in reliance upon the exemption from the registration requirements in Section 4(a)(2) of the foregoing, either individually Securities Act and/or Regulation D promulgated thereunder, as units comprised of one or moreapplicable. We are registering the resale of the PIPE Shares and the Pre-Funded Warrant Shares.
Our registration of the shares of common stock covered by this prospectus does not mean that the selling stockholders will offer or sell any of such shares of common stock. The selling stockholders named in this prospectus, or their donees, pledgees, transferees or other securities.successors-in-interest, may resell the shares of common stock covered by this prospectus through public or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices. For additional information on the possible methods of sale that may be used by the selling stockholders, you should refer to the section of this prospectus entitled “Plan of Distribution.”
We are registering the resale of the PIPE Shares and Pre-Funded Warrant Shares covered by this prospectus as required by the Registration Rights Agreement, dated April 11, 2024, by and among the Company and investors named therein (the “Registration Rights Agreement”). The selling stockholders will receive all of the proceeds from any sales of the shares offered hereby. We will not receive any of the proceeds, but we will incur expenses in connection with the offering. To the extent the Pre-Funded Warrants are exercised for cash, if at all, we will receive the exercise price of the Pre-Funded Warrants. We intend to use those proceeds, if any, for general corporate purposes and working capital.
Any shares of common stock subject to resale hereunder will have been issued by us and acquired by the selling stockholders prior to any resale of such shares pursuant to this prospectus.
No underwriter or other person has been engaged to facilitate the sale of the common stock in this offering. We will bear all costs, expenses and fees in connection with the registration of the common stock. The selling stockholders will bear all commissions and discounts, if any, attributable to their respective sales of our common stock.
Our common stock is traded on The Nasdaq Capital Market under the symbol “OCX.” On May 9, 2024, the last reported closing sale price of our common stock on The Nasdaq Capital Market was $2.87 per share.
This prospectus provides a general description of the securities we may offer. We will provide the specific terms of the securities offeredInvestment in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may add, update or change informationour common stock involves risk. See “Risk Factors” contained in this prospectus. Please read carefullyprospectus, in our periodic reports filed from time to time with the Securities and Exchange Commission, which are incorporated by reference in this prospectus theand in any applicable prospectus supplement, any related free writingsupplement. You should carefully read this prospectus and the accompanying prospectus supplement, together with the documents incorporatedwe incorporate by reference, before you invest in any of our securities.This prospectus may not be used to offer or sell any securities unless accompanied by the applicable prospectus supplement.
Ourcommon stock is listed on the NYSE American under the symbol “OCX.”On September 29, 2017, the last reported sale price of ourcommon stockwas $7.55 per share. The aggregate market value of our outstanding shares of common stock held by non-affiliates, based upon this price, was approximately $51.4 million. During the 12-month period ending on the date of this prospectus, we have not offered any securities pursuant to General Instruction I.B.6. of Form S-3.
Investing in our securities involves a high degree of risk. See “Risk Factors” on page 5 of this prospectus and in the documents incorporated by reference into this prospectus, as updated by the applicable prospectus supplement, any related free writing prospectus and other future filings we make with the Securities and Exchange Commission that are incorporated by reference into this prospectus, for a discussion of the factors we urge you to consider carefully before deciding to purchase our securities.
We may sell these securities directly to investors, through agents designated from time to time or to or through underwriters or dealers. For additional information on the methods of sale, please see the section titled “Plan of Distribution” in this prospectus. If any underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such underwriters and any applicable commissions or discounts will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.stock.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined ifpassed upon the adequacy or the accuracy of this prospectus or any accompanying prospectus supplement is truthful or complete.prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 20172024.
TABLE OF CONTENTS
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This prospectus is part of athe registration statement that we filed with the Securities and Exchange Commission or(the “SEC”) pursuant to which the SEC, under the Securities Act of 1933, as amended, or the Securities Act, using a “shelf” registration process. Under this process, weselling stockholders named herein may, from time to time, offer and sell either individually or in combination, in one or more offerings, up to a total dollar amount of $50.0 million anyotherwise dispose of the securities describedshares of our common stock covered by this prospectus. As permitted by the rules and regulations of the SEC, the registration statement filed by us includes additional information not contained in this prospectus.
This prospectus provides a general description ofand the securities we may offer. Each time we sell securities under this prospectus, we will, to the extent required by law, provide a prospectus supplement that will contain specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to a particular offering. The prospectus supplement and any related free writing prospectus may also add, update or change information contained in this prospectus or in any documents that we have incorporated by reference into this prospectus. To the extent there is a conflict between any statement contained in this prospectus, any applicable prospectus supplement, any related free writing prospectus or any document incorporated by reference into this prospectus include important information about us, the statementsecurities being offered and other information you should know before investing in our securities. You should not assume that the document having the later date modifies or supersedes the earlier statement.
The information appearingcontained in this prospectus any applicable prospectus supplement or any related free writing prospectus is accurate only as ofon any date subsequent to the date set forth on the front cover of the document, andthis prospectus or that any information we have incorporated by reference is accurate only as ofcorrect on any date subsequent to the date of the document incorporated by reference, regardless of the time of delivery ofeven though this prospectus any applicableis delivered or shares of common stock are sold or otherwise disposed of on a later date. It is important for you to read and consider all information contained in this prospectus, supplement or any related free writing prospectus, orincluding the timedocuments incorporated by reference therein, in making your investment decision. You should also read and consider the information in the documents to which we have referred you under “Where You Can Find More Information” and “Incorporation of any sale of a security. Our business, financial condition, results of operations and prospects may have changed since those dates.Certain Information by Reference” in this prospectus.
You mayshould rely only on this prospectus and the information contained in,incorporated or deemed to be incorporated by reference into,in this prospectusprospectus. We have not, and any applicable prospectus supplement, or the information contained in any free writing prospectus we have authorized for use in connection with a specific offering. Weselling stockholders have not, authorized anyone to providegive any information or to make any representation to you other than those contained or incorporated by reference in this prospectus. If anyone provides you with different or additional information.inconsistent information, you should not rely on it. This prospectus isdoes not constitute an offer to sell onlyor the solicitation of an offer to buy securities offered hereby, but only under circumstances and in jurisdictions whereany jurisdiction to any person to whom it is lawfulunlawful to do so.make such offer or solicitation in such jurisdiction.
As permitted by SEC rules and regulations,We further note that the registration statement of which this prospectus forms a part includes additional information not contained in this prospectus. This prospectus also contains summaries of certain provisions of the documents described herein, but all summaries are qualified in their entirety by reference to the actual documents. You may read the registration statement and the other reports we file with the SEC, and you may obtain copies of the actual documents summarized herein (if and when filed with the SEC), at the SEC’s website or at its offices described in the section of this prospectus titled “Where You Can Find More Information.”
The representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference intoin this prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
Unless otherwise indicated, information contained or incorporated by reference in this prospectus concerning our industry, including our general expectations and market opportunity, is based on information from our own management estimates and research, as well as from industry and general publications and research, surveys and studies conducted by third parties. Management estimates are derived from publicly available information, our knowledge of our industry and assumptions based on such information and knowledge, which we believe to be reasonable. In addition, assumptions and estimates of our and our industry’s future performance are necessarily uncertain due to a variety of factors, including those described in “Risk Factors” beginning on page 4 of this prospectus. These and other factors could cause our future performance to differ materially from our assumptions and estimates.
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This summary highlightsprovides an overview of selected information contained elsewhere or incorporated by reference in this prospectus. Before making an investment decision, pleaseprospectus and does not contain all of the information you should consider before investing in our securities. You should carefully read the prospectus, the information incorporated by reference and the registration statement of which this entireprospectus is a part in their entirety before investing in our securities, including the information discussed under “Risk Factors” in this prospectus and the documents incorporated by reference into this prospectus, especially the “Risk Factors” section of this prospectus and our financial statements and the related notes that are incorporated by reference intoin this prospectus. In this prospectus, unless the context indicates otherwise, requires,“Oncocyte,” the terms “OncoCyte,“Company,” the “registrant,” “we,” “us”“us,” “our,” or “our”“ours” refer to OncoCyte Corporation.Oncocyte Corporation and its subsidiaries.
Overview
Our mission isWe are a partner in the healthcare and life science field to researchers and physicians through our development and acquisitions of proprietary molecular technologies in the fields of oncology and transplantation. Through a series of acquisitions, we have built a portfolio of differentiated content with utility in well-established clinical and research markets.
With the increased adoption of precision medicine, healthcare providers are relying on advanced testing to identify patients who will benefit from new, targeted treatments and therapies that are more effective and often have fewer side effects than chemotherapy and other traditional treatments. In addition to identifying these individualized treatment options, researchers and healthcare providers are looking to new technologies to rapidly identify when medical or therapeutic interventions are necessary. We are leveraging our experience in oncology and transplantation to develop highly accurate, easy to administer, non-invasive molecularand commercialize diagnostic tests to improve the standard of care for cancer diagnosis to better meet the needs of patients, physicianstesting at our licensed and payers. Our initial focus will be confirmatory diagnostics, utilizing novel liquid biopsy technology, for use in conjunction with imaging to confirm initial suspicious imaging results suchaccredited laboratory as lung nodules and breast lumps within certain oncology indications. In addition, we may develop screening diagnosticswell as potential replacements for screening imaging protocols that do not meet the needs of patients, health care providers or payers. For some indications, we may also pursue the probability of recurrence of a specific cancer throughfocusing on the development of prognostics; or companion diagnosticsdistributable kitted formats of these technologies so that helpresearchers may study how these tests can be further utilized in other types of cancers. Commercialization of these products, which are intended to be sold for research purposes in the United States and labeled “For Research Use Only”, is expected to occur through a physician determine which therapy is the optimal treatment for the patient.mix of direct sales, partnering and distribution agreements, and licensing.
We have a laboratory and pharma services lab, certified under the Clinical Laboratory Improvements Amendment and accredited by the Collage of American Pathologists, in Nashville, Tennessee, and a research and development lab in Göttingen, Germany. We may sometimes refer to our technologies as “diagnostic tests.” Our initial liquid biopsy diagnostic tests will be confirmatory diagnostics and are beinglaboratory developed to reduce false positive results associated with current diagnostic protocols. These new diagnostic tests are intended to:
to help support and inform physician decision-making but are not themselves diagnostic or prescriptive of treatment decisions. They are critical to our ability to carry out our mission to improve patient outcomes by providing patient specific insights that inform critical provider decisions throughout the patient care journey. We believe that if clinicians are currently developing diagnostic tests for three types of cancer: lung cancer, breast cancer,given the right information and bladder cancer. Our strategic focus is to develop diagnostic tests in areas of high unmet need.educational tools, they will make the right choices with their patients.
We received Clinical Laboratory Improvements Amendments, or CLIA, certificationbelieve that the experience of registrationour team with diverse technologies through our pharma services activities (acquired through Insight Genetics), strong scientific integrity regarding evidence generation and innovation mentality, alongside our flexibility in operations and regulatory strategy, will drive our success, differentiate us from our competition, and are foundational to our future.
We plan to expand our role in the rapidly evolving healthcare market by strengthening our positions across our portfolio of capabilities, growing strategic opportunities that drive new business, and differentiating our unique offerings, capabilities, and financial performance. To do so, we are focusing on executing the technology priorities discussed below, which have evolved to reflect our operations and strategic vision.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company” and accordingly may provide less public disclosure than larger public companies. As a result, the information that we provide to our stockholders may be different than you might receive from other public reporting companies in which you hold equity interests.
April 2024 PIPE
On April 11, 2024, we entered into the Purchase Agreement with certain accredited investors for the issuance and sale in a private placement (the “Private Placement”) of an aggregate of 5,419,788 PIPE Shares and Pre-Funded Warrants to purchase up to 342,888 shares of common stock, with an exercise price of $0.0001 per share. The purchase price for one PIPE Share was $2.9164, and the purchase price for one Pre-Funded Warrant was $2.9163. Certain of our directors and officers subscribed for 42,373 of the shares of common stock sold in the Private Placement, at a purchase price of $2.95 per share of common stock.
A holder of the Pre-Funded Warrants may not exercise any portion of such holder’s Pre-Funded Warrants to the extent that the holder, together with its affiliates, would beneficially own more than 4.99% (or, at the election of the holder, 9.99%) of the Company’s outstanding shares of common stock immediately after exercise, except that upon at least 61 days’ prior notice from the Centers for Medicareholder to the Company, the holder may increase the beneficial ownership limitation to up to 9.99% of the number of shares of common stock outstanding immediately after giving effect to the exercise.
In connection with the Private Placement, the Company entered into the Registration Rights Agreement, dated as of April 11, 2024, with the investors named therein, pursuant to which the Company agreed to prepare and Medicaid Services. In addition, our laboratory has passed inspectionfile a registration statement with the SEC registering the resale of the PIPE Shares and the shares of common stock underlying the Pre-Funded Warrants no later than 30 days after the date of the Registration Rights Agreement, and to use best efforts to have the registration statement declared effective as promptly as practical thereafter, and in any event no later than 60 days following the date of the Registration Rights Agreement (or 75 days following the date of the Registration Rights Agreement in the event of a “full review” by the California Department of Public Health and is now fully licensed and operational.SEC).
Needham & Company, LLC served as the Company’s exclusive placement agent in connection with the Private Placement.
Corporate Informationinformation
We were incorporated in September 2009 in the state of California. Our principal executive offices are located at 1010 Atlantic Avenue, Suite 102, Alameda,15 Cushing, Irvine, California 94501.92618. Our telephone number is (510) 775-0515.(949) 409-7600. Our website address is www.oncocyte.com.Information contained on, or accessibleaccessed through our website is not a part of, and is not incorporated into this prospectus and references to our website inis not a part of this prospectus are inactive textual references only.We were a majority-owned subsidiary of BioTime, Inc., or BioTime, until February 17, 2017, when BioTime’s shareholdings became less than 50% of our outstanding shares of common stock.prospectus.
The Securities We May OfferTHE OFFERING
We may, from time to time in one or more offerings, offer and sell up to $50.0 million in the aggregate of common stock, preferred stock, debt securities, warrants to purchase common stock, preferred stock or debt securities, or any combination of the foregoing, either individually or as units comprised of one or more of the other securities. The prices and terms of our offer and sale of such securities will be determined by market conditions at the time of offering. Each time we offer securities under this prospectus, we will provide offerees with a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities being offered, including, to the extent applicable:
| Common Stock to be Offered by the Selling Stockholders | ||
| Use of Proceeds | ||
| Registration Rights | Under the terms of the Registration Rights Agreement, we agreed to file this registration statement with respect to the registration of the resale by the selling stockholders of the PIPE Shares and the Pre-Funded Warrant Shares, as applicable, by the 30th calendar day following the date of the Registration Rights Agreement, and to use best efforts to have the registration statement declared effective as promptly as practical, and in any event, no later than the 60th calendar day following the date of the Registration Rights Agreement or in the event of a full review by the SEC, 75 days. In addition, we agreed that, upon the registration statement being declared effective under the Securities Act of 1933, as amended (the “Securities Act”), we will use our best efforts to maintain the effectiveness of the registration statement until the date that (i) the selling stockholders have sold all of the shares of common stock issuable under the Registration Rights Agreement or (ii) such shares may be resold by the selling stockholders pursuant to Rule 144 of the Securities Act, without the requirement for us to be in compliance with the current public information required under such rule and without volume or manner-of-sale restriction. See “Selling Stockholders” on page 7 of this prospectus for additional information. | |
| Plan of Distribution | The selling stockholders named in this prospectus, or their pledgees, donees, transferees, distributees, beneficiaries or other successors-in-interest, may offer or sell the shares of common stock from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices. The selling stockholders may also resell the shares of common stock to or through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, concessions or commissions. See “Plan of Distribution” beginning on page 11 of this prospectus for additional information on the methods of sale that may be used by the selling stockholders. | |
| Nasdaq Capital Market Symbol | ||
| Risk Factors | ||
The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus forms a part.
The following is a general summary of the securities we may offer with this prospectus. For more specific information regarding any offering of securities, please read the prospectus supplement and any free writing prospectus that we may authorize to be provided to you in connection with a particular offering, together with any exhibits that may be filed setting forth the terms of the securities.
Common Stock
Our Articles of Incorporation currently authorize the issuance of up to 50,000,000 shares of common stock, no par value. As of August 7, 2017, there were outstanding 31,336,487 shares of common stock, no par value. Each holder of record of common stock is entitled to one vote for each outstanding share owned, on every matter properly submitted to the shareholders for their vote. Subject to any dividend rights of holders of any of the preferred stock that we may issue from time to time, holders of common stock are entitled to any dividend declared by our board of directors out of funds legally available for that purpose. We have never paid cash dividends on our capital stock and we do not anticipate paying cash dividends in the foreseeable future, but intend to retain our capital resources for reinvestment in our business.
Preferred Stock
Our Articles of Incorporation currently authorize the issuance of up to 5,000,000 shares of preferred stock, no par value. We may issue preferred stock in one or more series, at any time, with such rights, preferences, privileges and restrictions as our board of directors may determine, all without further action of our shareholders. Any series of preferred stock which may be authorized by our board of directors in the future may be senior to and have greater rights and preferences than our common stock. There are no shares of preferred stock presently outstanding and we have no present plan, arrangement, or commitment to issue any preferred stock.
Debt Securities
We may offer general debt obligations, which may be secured or unsecured, senior or subordinated and convertible into common stock. In this prospectus, we refer to debt securities having any or all of these features as the “debt securities.” We may issue debt securities under a note purchase agreement or under an indenture to be entered between us and a trustee. A form of the indenture is included as an exhibit to the registration statement of which this prospectus forms a part. The indenture does not limit the amount of securities that may be issued under it and provides that debt securities may be issued in one or more series. Senior debt securities will have the same rank as other indebtedness that is not subordinated. Subordinated debt securities will be subordinated to any senior debt on terms set forth in the applicable prospectus supplement. In addition, subordinated debt securities will be effectively subordinated to creditors and preferred shareholders of our subsidiaries. Our board of directors will determine the terms of each series of debt securities we may offer.
In addition to the form of indenture, supplemental indentures and forms of debt securities containing the terms of debt securities we may offer under this prospectus will be filed as exhibits to the registration statement of which this prospectus forms a part, or will be incorporated by reference from another report that we file with the SEC.
We may offer warrants for the purchase of common stock, preferred stock or debt securities. We may issue the warrants by themselves or together with shares or common stock or preferred stock or with debt securities, and the warrants may be attached to or separate from any offered securities. Our board of directors will determine the terms of the warrants, including the class andnumber of underlying shares, the purchase price and any other rights and privileges, which will be set forth in theform of warrant or the warrant agreement and warrant certificate.
Units
We may offer units comprised of any combination of our common stock, preferred stock, debt securities or warrants to purchase any of these securities, in one or more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements with a unit agent, which will be a bank or trust company that we select. We will indicate the name and address of any unit agent in the applicable prospectus supplement relating to a particular series of units.
Investing in our securities involves a high degree of riskrisk. In addition to the other information contained in this prospectus and uncertainty. Before making an investment decision with respect to our securities,in the documents we urgeincorporate by reference, you toshould carefully consider the risks describeddiscussed below and under the heading “Risk Factors” in the “Risk Factors” section of our Annual Report on Form 10-K for the fiscal year ended December 31, 20162023 as well as any amendment or update to our risk factors reflected in subsequent filings with the SEC, before making a decision about investing in our securities. The risks and our Quarterly Reports on Form 10-Q foruncertainties discussed below and in the quarterly period ended March 31, 2017 and June 30, 2017, which aredocuments incorporated by reference into this prospectus. We expect to update these risk factors from time to time inare not the periodic and current reports that we file with the SEC after the date of this prospectus, which will be incorporated by reference into this prospectus. Please also carefully consider the other information included in or incorporated by reference into this prospectus, as may be updated by our subsequent filings under the Securities Exchange Act of 1934, as amended, or the Exchange Act. In connection with any specific offering, we also expect to provide risk factors and other information in the applicable prospectus supplement or in any related free writing prospectus. If one or more of the adverse events relevant to these risks and uncertainties actually occurs, our business, financial condition, and results of operations could be severely harmed. This could cause the trading price of our securities to decline, and you could lose all or part of your investment.only ones facing us. Additional risks and uncertainties not presently known to us, or that we currently deemsee as immaterial, may also may have similar adverse effects on us.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained herein are forward-looking statements, within the meaning of the Private Securities Litigation Reform Act of 1995, including statements pertaining to the results of CLIA and validity studies ofharm our lung cancer test, our ability to implement commercialization plans and the timingbusiness. If any of these plans, as well as futurerisks occur, our business, financial orcondition and operating results future growth in research, technology, clinical development, potential opportunities, and any statements aboutcould be harmed, the future expectations, beliefs, goals, plans, or prospects expressed by management. Any statements that are not historical fact (including, but not limited to statements that contain words such as “will,” “believes,” “plans,” “anticipates,” “expects,” “estimates”) are forward-looking statements. Forward-looking statements involve risks and uncertainties, including risks inherent in the development or commercialization of potential diagnostic tests or products, uncertainty in the results of clinical trials or regulatory approvals, the need and ability to obtain future capital, maintenance of intellectual property rights, and the need to obtain third party reimbursement for patients’ use of any diagnostic tests we commercialize. Actual results may differ materially from the results anticipated in these forward-looking statements and as such should be evaluated together with the many uncertainties that affect our business, particularly those mentioned in the “Risk Factors” section of this prospectus and the filings we make with the SEC. The disclosure in this prospectus, including any forward-looking statement, speaks only as of its date, the date of this prospectus, or the date of any document incorporated by reference into this prospectus, as applicable.We disclaim any intent or obligation to update any forward-looking statement, except as required by law.
Except as described in any prospectus supplement or any free writing prospectus in connection with a specific offering, we intend to use the net proceeds from the sale of the securities offered under this prospectus for working capital and general corporate purposes, including continued development of its first assay, DetermaVu™, a confirmatory lung cancer diagnostic. We may also use a portion of the net proceeds to acquire or in-license additional product candidates or complementary assets or businesses; however, we currently have no agreements, commitments or understandings to complete any such transaction.
We have not yet identified the amounts we intend to spend on these areas or the timing of the expenditures, which will be based on many factors. Accordingly, our management will have broad discretion regarding the use of, and investors will be relying on the judgment of our management regarding the application of, the net proceeds from the sale of the securities offered under this prospectus. Pending these uses, we intend to invest the net proceeds in short-term, interest bearing, investment-grade securities. We cannot predict whether these investments will yield a favorable return.
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth, for the periods presented, our ratio of earnings to fixed charges and our ratio of earnings to combined fixed charges and preferred stock dividends. We had no shares of preferred stock outstanding and no preferred stock dividend requirements during these periods, so these ratios are the same. For purposes of computing these ratios, “earnings” consist of our net loss plus our fixed charges, and “fixed charges” consist of an estimate of the interest within rental expense, the interest payments on our loan payable to Silicon Valley Bank, amortization of debt discount on the loan payable to Silicon Valley Bank, and the interest payments on our equipment leases.
In each of the periods presented, earnings were insufficient to cover fixed charges and preferred stock dividends, and the extent of such deficiencies in each period is shown below.
Three Months June 30, | Six Months June 30, | Year Ended December 31, | ||||||||||||||||||||||
| 2017 | 2017 | 2016 | 2015 | 2014 | 2013 | |||||||||||||||||||
| Ratio of earnings to fixed charges and preferred stock dividends | — | — | — | — | — | — | ||||||||||||||||||
| Deficiency of earnings available to cover combined fixed charges and preferred stock dividends | $ | (3,804 | ) | $ | (8,509 | ) | $ | (11,168 | ) | $ | (8,735 | ) | $ | (4,986 | ) | $ | (3,495 | ) | ||||||
We may offer shares of common stock and preferred stock, various series of debt securities and warrants to purchase any of such securities, or any combination of the foregoing, either individually or in units. We may offer up to $50.0 million of securities under this prospectus. The prices and terms of any offering will be determined by market conditions at the time of offering. Each time we offer securities under this prospectus, we will provide offerees with a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities being offered.
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
The following descriptiontrading price of our common stock could decline and preferred stock, together with any additional information we include in any applicable prospectus supplement, documents incorporated by referenceyou could lose part or any related free writing prospectus, summarizes the material terms and provisionsall of our common stock and preferred stock that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future common stock and preferred stock that we may offer, we will describe the particular terms of any class or series of these securities in more detail in the applicable prospectus supplement. For the complete terms of our common stock and preferred stock, please refer to our Articles of Incorporation, as amended to date, which are incorporated by reference into the registration statement of which this prospectus forms a part. The terms of these securities may also be affected by the California Corporations Code, as may be amended from time to time. The summaries below are qualified in their entirety by reference to our Articles of Incorporation, as in effect at the time of any offering of securities under this prospectus.
Common Stockyour investment.
GeneralThe sale of a substantial amount of our shares in the public market could adversely affect the prevailing market price of our securities.
Our Articles of Incorporation currently authorize the issuance ofWe are registering for resale up to 50,000,000 shares of common stock, no par value. As of August 7, 2017, there were outstanding 31,336,487 shares of common stock, no par value. Each holder of record of common stock is entitled to one vote for each outstanding share owned, on every matter properly submitted to the shareholders for their vote.
Subject to any dividend rights of holders of any of the preferred stock that we may issue from time to time, holders of common stock are entitled to any dividend declared by our board of directors out of funds legally available for that purpose. We have never paid cash dividends on our capital stock and we do not anticipate paying cash dividends in the foreseeable future, but intend to retain our capital resources for reinvestment in our business.
Subject to the prior payment of any liquidation preference to holders of any preferred stock that we may issue from time to time, holders of common stock are entitled to receive on a pro rata basis all of our remaining assets available for distribution to the holders of common stock in the event of the liquidation, dissolution, or winding up of our operations. Holders of common stock do not have any preemptive rights to become subscribers or purchasers of additional shares of any class of our capital stock.
All of the outstanding5,419,788 shares of our common stock are fully paid and non-assessable. Theheld by the selling stockholders, which is a significant number of shares compared to the current number of total shares of common stock offered under this prospectus or upon the conversionissued and outstanding. Sales of any preferred stock or debt securities or exercisesubstantial amounts of any warrants offered pursuant to this prospectus, when paid for and issuedin accordance with the applicable definitive documents under which they are to be issued,will also be fully paid and non-assessable.
Securities Exchange Listing
Our common stock listed on theNYSE Americanunder the symbol “OCX.”
Transfer Agent and Registrar
The transfer agent and registrar forshares of our common stock is American Stock Transfer and Trust Company, LLC, 6201 15th Avenue, Brooklyn, New York 11219.
Preferred Stock
Our Articles of Incorporation currently authorize the issuance of up to 5,000,000 shares of preferred stock, no par value. We may issue preferred stock in one or more series, at any time, with such rights, preferences, privileges and restrictions as our board of directors may determine, all without further action of our shareholders. Any series of preferred stock which may be authorized by our board of directors in the future may be senior to and have greater rights and preferences than our common stock. There are no shares of preferred stock presently outstanding and we have no present plan, arrangement,public market, or commitment to issue any preferred stock.
The rights, privileges, preferences and restrictions of any class or series of preferred stock may be subordinated to, pari passu with or senior to any of those of any present or future class or series of preferred stock orcommon stock. Our board of directors is also expressly authorized to increase or decrease the number of shares of any series prior or subsequent to the issue ofperception that series, but not below the number of shares of such series then outstanding. The issuance of preferred stock may have the effect of decreasingsales might occur, could adversely affect the market price of our common stockstock. We cannot predict if and when selling stockholders may adversely affect the voting power of holderssell such shares of our common stock and reducein the likelihood that holderspublic markets. Furthermore, in the future, we may issue additional shares of our common stock will receive dividend paymentsor other equity or debt securities convertible into shares of our common stock. Any such issuance could result in substantial dilution to our existing stockholders and payments upon liquidation.could cause the market price of our securities to decline.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
The particular terms of each class or series of preferred stock that we may offer underThis prospectus and the information incorporated by reference in this prospectus including redemption privileges, liquidation preferences, voting rights, dividend rights or conversion rights, will be more fully described in the applicable prospectus supplementcontain “forward-looking statements,” which include information relating to future events, future financial performance, strategies, expectations, competitive environment and regulation. Words such as “may,” “should,” “could,” “would,” “predicts,” “potential,” “continue,” “expects,” “anticipates,” “future,” “intends,” “plans,” “believes,” “estimates,” and similar expressions, as well as statements in future tense, are intended to identify forward-looking statements. Forward-looking statements should not be read as a guarantee of future performance or results and may not be accurate indications of when such performance or results will actually be achieved. Forward-looking statements are based on information we have when those statements are made or our management’s good faith belief as of that time with respect to future events, and are subject to risks and uncertainties that could cause actual performance or results to differ materially from those expressed in or suggested by the preferred stock offered thereby. Theapplicable prospectus supplement will specify the terms of the class or series of preferred stock we may offer, including:forward-looking statements. Important factors that could cause such differences include, but are not limited to:
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| ● | our plans to pursue research and development of | |
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| ● | our assumptions regarding obtaining reimbursement and reimbursement rates of our current diagnostic tests and/or diagnostic tests in development; | |
| ● | our estimates regarding future orders of tests and our ability to perform a projected number of tests; | |
| ● | our estimates and assumptions around the patient populations, market size and price points for reimbursement for our diagnostic tests; | |
| ● | our estimates regarding future revenues, operating expenses, and future capital requirements; | |
| ● | our intellectual property position; | |
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DESCRIPTION OF DEBT SECURITIES
We may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The following description, together with the additional information we include in any applicable prospectus supplements or free writing prospectuses, summarizes the material terms and provisions of the debt securities that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future debt securities we may offer underYou should read this prospectus we will describeand any related free-writing prospectus and the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement or free writing prospectus. The terms of any debt securities we offer under a prospectus supplement may differ from the terms we describe below. However, no prospectus supplement shall fundamentally change the terms that are set forthdocuments incorporated by reference in this prospectus with the understanding that our actual future results, levels of activity, performance and events and circumstances may be materially different from what we expect. The forward-looking statements contained or offer a security that is not registered and describedincorporated by reference in this prospectus at the time of its effectiveness. We had no outstanding registered debt securities as of June 30, 2017. Unless the context requires otherwise, whenever we refer to the “indenture,” we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We may issue debt securities under a note purchase agreement or under an indenture to be entered between us and a trustee. A form of the indenture is included as an exhibit to the registration statement of which this prospectus forms a part. The indenture will be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We use the term “trustee” to refer to the trustee under the indenture.
The following summaries of material provisions of senior debt securities, subordinated debt securities and the indenture are subject to, andexpressly qualified in their entirety by referencethis cautionary statement. We do not undertake any obligation to allpublicly update any forward-looking statement to reflect events or circumstances after the date on which any such statement is made or to reflect the occurrence of unanticipated events.
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All shares of our common stock offered by this prospectus are being registered for the accounts of the provisionsselling stockholders and we will not receive any proceeds from the sale of these shares. However, will receive proceeds from the exercise of the indenturePre-Funded Warrants if such Pre-Funded Warrants are exercised for cash. We intend to use those proceeds, if any, for general corporate purposes and any supplemental indentures applicable to a particular series of debt securities. We urge you to readworking capital.
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The common stock being offered by the applicable prospectus supplements and any related free writing prospectuses relatedselling stockholders are those previously issued to the debt securitiesselling stockholders, and those issuable to the selling stockholders upon exercise of the Pre-Funded Warrants, as applicable. For additional information regarding the issuances of those shares of common stock and the Pre-Funded Warrants, see “April 2024 PIPE” above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time. Except as described below under “Relationships with the Selling Stockholders,” the selling stockholders have not had any material relationship with us within the past three years.
The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by each selling stockholders, based on its ownership of the shares of common stock and Pre-Funded Warrants, as of May 7, 2024, assuming exercise of the Pre-Funded Warrants held by the selling stockholders on that we may offer underdate, without regard to any limitations on exercises.
The fourth column lists the shares of common stock being offered by this prospectus as well asby the complete indenture that containsselling stockholders.
In accordance with the terms of the debt securities.Registration Rights Agreement with the selling stockholders, this prospectus generally covers the resale of the sum of (i) the number of shares of common stock issued to the selling stockholders in the “April 2024 PIPE” described above and (ii) the maximum number of shares of common stock issuable upon exercise of the Pre-Funded Warrants, determined as if such outstanding Pre-Funded Warrants were exercised in full as of the trading day immediately preceding the date this registration statement was initially filed with the SEC, each as of the trading day immediately preceding the applicable date of determination and all subject to adjustment as provided in the Registration Rights Agreement, without regard to any limitations on the exercise of the Pre-Funded Warrants. The fifth column assumes the sale of all of the shares offered by the selling stockholders pursuant to this prospectus. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
GeneralUnless otherwise indicated, all information contained in the table below and the footnotes thereto is based upon information provided to us by the selling shareholders. The percentage of shares owned prior to and after the offering is based on 13,364,637 shares of common stock outstanding as of May 6, 2024. Unless otherwise indicated in the footnotes to this table, we believe that each selling shareholder has sole voting and investment power with respect to the common stock indicated as beneficially owned. Except as otherwise indicated below, based on the information provided to us by the selling shareholders, and to the best of our knowledge, no selling shareholder is a broker-dealer or an affiliate of a broker-dealer.
The terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in an officers’ certificate or by a supplemental indenture. Debt securities may be issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount for the debt securities of any series. We will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
| Shares of Common Stock Beneficially Owned Before Offering | Maximum Number of Shares of Common Stock | Shares of Common Stock Beneficially Owned After Offering | ||||||||||||||||||
| Selling Shareholders | Number | Percentage | Offered | Number | Percentage | |||||||||||||||
| Broadwood Partners, L.P. (1) | 5,079,316 | (2) | 37.58 | % | 2,420,000 | (3) | 2,659,316 | 19.68 | % | |||||||||||
| Bigger Capital Fund, LP(4) | 257,167 | (5) | * | % | 257,167 | (6) | - | * | % | |||||||||||
| Bio-Rad Laboratories, Inc. (7) | 1,200,109 | (8) | 8.98 | % | 1,200,109 | (9) | - | * | % | |||||||||||
| Newtown Road 130 Holdings LLC (10) | 431,433 | (11) | 3.22 | % | 120,011 | (12) | 242,844 | 1.81 | % | |||||||||||
| Proactive Capital Partners, LP(13) | 34,289 | (14) | * | % | 34,289 | (15) | - | * | % | |||||||||||
| Iroquois Master Fund Ltd. (16) | 68,578 | (17) | * | % | 68,578 | (18) | - | * | % | |||||||||||
| Iroquois Capital Investment Group LLC(19) | 102,867 | (20) | * | % | 102,867 | (21) | - | * | % | |||||||||||
| Special Situations Cayman Fund, L.P. (22) | 1,448,611 | (23) | 10.45 | % | 154,869 | (24) | 762,834 | 5.64 | % | |||||||||||
| Special Situations Fund III Q.P. L.P. | 1,448,611 | (25) | 10.45 | % | 530,908 | (26) | 762,834 | 5.64 | % | |||||||||||
| 3i, LP(27) | 171,444 | (28) | 1.28 | % | 171,444 | (29) | - | * | % | |||||||||||
| James Stloff ttee Dustin Nathanial Satloff Trust u/a 6/1/93(30) | 425,756 | (31) | 3.19 | % | 34,289 | (32) | 254,311 | 1.90 | % | |||||||||||
| James Stloff ttee Theodore Jeanl Satloff Trust u/a10/4/93 (30) | 425,756 | (33) | 3.19 | % | 34,289 | (34) | 254,311 | 1.90 | % | |||||||||||
| James Satloff ttee Emily U Satloff Family Trust u/e 3/25/93(30) | 425,756 | (35) | 3.19 | % | 34,289 | (36) | 254,311 | 1.90 | % | |||||||||||
| James Saltoff(30) | 425,756 | (37) | 3.19 | % | 68,578 | (38) | 254,311 | 1.90 | % | |||||||||||
| Joshua Riggs | 3,390 | (39) | * | % | 3,390 | (40) | - | * | % | |||||||||||
| Ekkehard Scheutz | 10,404 | (41) | * | % | 5,085 | (42) | 5,085 | * | % | |||||||||||
| John P. Gutfreund(10) | 431,433 | (43) | 3.22 | % | 68,578 | (44) | 242,844 | 1.81 | % | |||||||||||
| Emanuel Neuman | 17,145 | (45) | * | % | 17,145 | (46) | - | * | % | |||||||||||
| Ann Unterberg | 109,934 | (47) | * | % | 34,289 | (48) | 75,645 | * | % | |||||||||||
| Andrew Arno | 136,850 | (49) | 1.02 | % | 33,898 | (50) | 102,952 | * | % | |||||||||||
| Mary A Debare | 62,014 | (51) | * | % | 25,716 | (52) | 36,298 | * | % | |||||||||||
* Less than 1%
| The shares of common stock are directly owned by Broadwood Partners, L.P. (“Broadwood”). Broadwood Capital, Inc. is the |
| (2) | Includes 5,079,316 shares of common stock consisting of (i) 2,509,066 shares of common stock, (ii) 150,093 shares of common stock underlying certain warrants, (iii) 157 shares of common stock owned by Neal Bradsher, and (iv) 2,420,000 PIPE Shares. |
| (4) | The shares of common stock are directly owned by Bigger Capital Fund, LP (“Bigger Capital”). Michael Bigger, the managing member of Bigger Capital, may be deemed to beneficially own the shares of common stock owned by Bigger Capital. The address of the principal business office of Bigger Capital is 11700 West Charleston BLVD. #170-659, Las Vegas, NV, 89135. |
| (6) | The shares that may be sold under this prospectus are comprised of 257,167 PIPE Shares. |
| (7) | The shares of common stock are directly owned by Bio-Rad Laboratories, Inc. (“Bio-Rad”). Norman Schwartz has voting and investment control over the | |
| Includes 1,200,109 shares of common stock consisting of 1,200,109 PIPE Shares |
| (10) | Includes shares of common stock held by John P. Gutfreund, his minor children and Newtown Road 130 Holdings LLC (“Newtown”). Mr. Gutfreund is the managing member and a control person of Newtown and may be deemed to beneficially own any securities directly owned by Newtown. |
| (11) | Includes 431,433 shares of common stock, consisting of (i) 153,969 shares of common stock, (ii) 120,011 PIPE Shares, (iii) 49,625 shares of common stock underlying certain warrants, (iv) 68,578 PIPE Shares held by Mr. Gutfreund, (v) 35,750 shares of common stock held by Mr. Gutfreund, (vi) 1,250 shares of common stock held for the benefit of the minor children of Mr. Gutfreund and (vii) 2,250 shares of common stock underlying certain warrants held by Mr. Gutfreund. |
| (12) | The shares that may be sold under this prospectus are comprised of 120,011 PIPE Shares. |
| (13) | The shares of common stock are directly owned by Proactive Capital Partners, LP (“Proactive Capital”). Jeffrey S. Ramson has voting and investment control over the securities held by Proactive Capital and may be deemed to beneficially own the shares of common stock owned by Proactive Capital. The address of the principal business office of Proactive Capital is 950 3rd Avenue, Suite 2700, New York, N.Y. 10022. |
| (14) | Includes 34,289 shares of common stock consisting of 34,289 PIPE Shares |
| (15) | The shares that may be sold under this prospectus are comprised of 34,289 PIPE Shares. |
| (16) | The shares of common stock are directly owned by Iroquois Master Fund Ltd (“IMF”). Kimberly Page has sole voting and dispositive power over the shares held by. As such, Ms. Page may be deemed to be the beneficial owner of all shares of common stock held by IMF. The address of the principal business office of IMF is 2 Overhill Road, Suite 400, Scarsdale, NU 10583. |
| (17) | Includes 68,578 shares of common stock consisting of 68,578 PIPE Shares. |
| (18) | The shares that may be sold under this prospectus are comprised of 68,578 PIPE Shares. |
| (19) | The shares of common stock are directly owned by Iroquois Capital Investment Group LLC (“ICIG”). Mr. Abbe exercises sole voting and dispositive power over the shares held by ICIG. As such, Mr. Abbe may be deemed to be the beneficial owner of all shares of common stock held by ICIG. The address of the principal business office of ICIG is 2 Overhill Road, Suite 400, Scarsdale, NU 10583. |
| (20) | Includes 102,867 shares of common stock consisting of 102,867 PIPE Shares. |
| (21) | The shares that may be sold under this prospectus are comprised of 102,867 PIPE Shares. |
| (22) | Includes shares of common stock held by Special Situations Cayman Fund, L.P. (“Cayman”), Special Situations Fund III QP, L.P. (“SSFQP”), AWM Investment Company, Inc. (“AWM”), Special Situations Private Equity Fund, L.P. (“SSPE”) and Special Situations Life Sciences Fund, L.P. (“SSLS”). AWM is the investment adviser to Cayman and SSFQP. David Greenhouse and Adam Stettner are the principal owners of AWM. Through their control of AWM, Messrs. Greenhouse and Stettner share voting and investment control over the portfolio securities of each of Cayman and SSFQP. Messrs. Greenhouse and Stettner disclaim any beneficial ownership of the reported shares other | |
| (23) | Includes 1,448,611 shares of common stock consisting of (i) 608,049 shares of common stock, (ii) 77,435 PIPE shares, (iii) 77,434 shares of common stock issuable upon the exercise of the Pre-Funded Warrants, (iv) 117,261 shares of common stock underlying certain warrants, (v) 18,762 shares of common stock underlying certain warrants held by SSPE, and (vi) 18,762 shares of common stock underlying certain warrants held by SSLS, (vii) 265,454 PIPE shares held by SSFQP, and (viii) 265,454 shares of common stock issuable upon the exercise of the Pre-Funded Warrants held by SSFQP. |
| The shares that may be sold under this prospectus are comprised of 77,435 PIPE Shares and 77,434 shares of common stock issuable upon the |
| (25) | Includes 1,448,611 shares of common stock consisting of (i) 608,049 shares of common stock, (ii) 265,454 PIPE shares, (iii) 265,454 shares of common stock issuable upon the exercise of the Pre-Funded Warrants, (iv) 117,261 shares of common stock underlying certain warrants, (v) 18,762 shares of common stock underlying certain warrants held by SSPE, and (vi) 18,762 shares of common stock underlying certain warrants held by SSLS, (vii) 77,435 PIPE shares held by Cayman, and (viii) 77,434 shares of common stock issuable upon the |
| (26) | The shares that may |
| (27) | The shares of common stock are directly owned by 3i, LP (“3i”). Maier Joshua Tarlow is the manager of 3i Management, LLC, the general partner of 3i, and has sole voting control and investment discretion over securities |
| (28) | Includes 171,444 shares of common stock consisting of 171,444 PIPE shares. |
| (29) | The shares that may be sold under this prospectus are comprised of 171,444 PIPE Shares. |
| (30) | Includes shares of common stock held by James Stloff ttee Theodore Jeanl Satloff Trust u/a10/4/93 (“Theodore”), James Satloff ttee Emily U Satloff Family Trust u/e 3/25/93 (“Emily”), James Stloff ttee Dustin Nathanial Satloff Trust u/a 6/1/93 (“Dustin Nathanial,” and together with Theodore and Emily, the “Satloff Trusts”) and James Satloff. James Satloff may be deemed to |
| (31) | Includes 425,756 shares of common stock, consisting of (i) 50,862 shares of common stock, (ii) 34,289 PIPE Shares, (iii) 50,862 shares of common stock held by Emily, (iv) 50,862 shares of common stock held by Theodore, (v) 101,725 shares of common stock held by James Satloff, (vi) 34,289 PIPE Shares held by Emily, (vii) 34,289 PIPE Shares held by Theodore, and |
| (32) | The shares that may be sold under this prospectus are comprised of |
| (33) | Includes 425,756 shares of common stock, consisting of (i) 50,862 shares of common stock, (ii) 34,289 PIPE Shares, (iii) 50,862 shares of common stock held by Emily, (iv) 50,862 shares of common stock held by Dustin Nathanial, (v) 101,725 shares of common stock held by James Satloff, (vi) 34,289 PIPE Shares held by Emily, (vii) 34,289 PIPE Shares held by Dustin Nathanial, (viii) 68,578 PIPE Shares held by James Satloff. |
| (35) | ||
| (37) | Includes 425,756 shares of common stock, consisting of (i) 101,725 shares of common stock, (ii) 68,578 PIPE Shares, (iii) 50,862 shares of common stock held by Theodore, (iv) 50,862 shares of common stock held by Dustin Nathanial, (v) 50,862 shares of common stock held by Emily, (vi) 34,289 PIPE Shares held by Theodore, (vii) 34,289 PIPE Shares held by Dustin Nathanial, (viii) 34,289 PIPE Shares held by Emily. |
| (38) | The shares that may be sold under this prospectus are comprised of 68,578 PIPE Shares. |
| (39) | Includes 3,390 shares of common stock comprised of 3,390 PIPE Shares. |
| (40) | The shares that may be sold under this prospectus are comprised of 3,390 PIPE Shares. |
| (41) | Includes 10,404 shares of common stock consisting of (i) 5,319 shares of common stock, and (ii) 5,085 PIPE Shares. |
| (42) | The shares that may be sold under this prospectus are comprised of 5,085 PIPE Shares. |
| (43) | Includes 431,433 shares of common stock, consisting of (i) 35,750 shares of common stock, (ii) 68,578 PIPE Shares, (iii) 2,250 shares of common stock underlying certain warrants, (iv) 120,011 PIPE Shares held by Newtown, (v) 153,969 shares of common stock held by Newtown, (vi) 1,250 shares of common stock held for the benefit of the minor children of Mr. Gutfreund and (vii) 49,625 shares of common stock underlying certain warrants held by Newtown. |
| (44) | The shares that may be sold under this prospectus are comprised of 68,578 PIPE Shares. |
| (45) | Includes 17,145 shares of common stock consisting of 17,145 PIPE Shares |
| (46) | The shares that may be sold under this prospectus are comprised of 17,145 PIPE Shares. |
| (47) | Includes 109,934 shares of common stock consisting of (i) 75,645 shares of common stock, and (ii) 17,145 PIPE Shares. |
| (48) | The shares that may be sold under this prospectus are comprised of 34,289 PIPE Shares. |
| (49) | Includes 136,850 shares of common stock consisting of (i) 102,952 shares of common stock, and (ii) 33,898 PIPE Shares. |
| (50) | The shares that may be sold under this prospectus are comprised of 33,898 PIPE Shares. |
| (51) | Includes 62,014 shares of common stock consisting of (i) 36,298 shares of common stock, and (ii) 25,716 PIPE Shares |
| (52) | The shares that may be sold under this prospectus are comprised of 25,716 PIPE Shares. |
Each selling stockholder of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered hereby on the Nasdaq Capital Market or any other stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A selling stockholder may use any one or more of the following methods when selling securities:
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| ● | block trades in which the broker-dealer will | |
| ● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; | |
| ● | an exchange distribution in accordance with the rules of the applicable exchange; | |
| ● | privately negotiated transactions; | |
| ● | settlement of short sales; | |
| ● | in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security; | |
| ● | through the writing or settlement of options or other | |
| ● | a | |
| ● | any other |
Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement the terms under which a series of debt securities may be convertible into or exchangeable for our common stock, preferred stock or other securities (including securities of a third party). We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or preferred stock or other securities (including securities of a third party) that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our ability to merge or consolidate, or to sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the indenture or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect to any series of debt securities that we may issue:
We will describe in each applicable prospectus supplement any additional events of default relating to the relevant series of debt securities.
If an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises due to the occurrence of certain specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any, and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
The indenture provides thatselling stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act, if an eventavailable, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of default has occurred and is continuing,securities, from the trustee willpurchaser) in amounts to be requirednegotiated, but, except as set forth in a supplement to this prospectus, in the exercisecase of its powers to use the degreean agency transaction not in excess of care that a prudent person would usecustomary brokerage commission in the conduct of its own affairs. The trustee, however, may refuse to follow any direction that conflicts with law or the indenture, or that the trustee determines is unduly prejudicial to the rights of any other holder of the relevant series of debt securities, or that would involve the trustee in personal liability. Prior to taking any action under the indenture, the trustee will be entitled to indemnification against all costs, expenses and liabilities that would be incurred by taking or not taking such action.
A holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies only if:
These limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
The indenture provides that if a default occursFINRA Rule 2121; and is continuing and is actually known to a responsible officer of the trustee, the trustee must mail to each holder notice of the default within the earlier of 90 days after it occurs and 30 days after it is known by a responsible officer of the trustee or written notice of it is received by the trustee, unless such default has been cured or waived. Except in the case of a defaultprincipal transaction a markup or markdown in compliance with FINRA 2121.
In connection with the sale of the securities or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the paymentcourse of principalhedging the positions they assume. The selling stockholders may also sell securities short and deliver these securities to close out their short positions, or premiumloan or pledge the securities to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or interest on,other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling stockholders and any debt securitybroker-dealers or certain other defaults specifiedagents that are involved in an indenture,selling the trustee shallsecurities may be protected in withholding such notice if and so long asdeemed to be “underwriters” within the board of directors, the executive committee or a trust committee of directors, or responsible officersmeaning of the trustee,Securities Act in good faith determineconnection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each selling stockholder has informed us that withholding notice isit does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.
We are required to pay certain fees and expenses incurred by us incident to the registration of the securities. We have agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the selling stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for us to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the best interests of holdersapplicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the relevant series of debt securities.
Modification of Indenture; Waiver
Subject to the terms of the indenture for any series of debtresale securities that we may issue, we and the trustee may change an indenture without the consent of any holdersnot simultaneously engage in market making activities with respect to the following specific matters:
common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, subject to the terms of the indenture for any series of debt securities that we may issue or otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may only make the following changes with the consent of each holder of any outstanding debt securities affected:Securities Act).
The indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we may elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations to:
In order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, and any premium and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company or another depositary named by us and identified in a prospectus supplement with respect to that series. See “—Legal Ownership of Securities” below for a further description of the terms relating to any book-entry securities.
At the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the definitive documents applicable to the debt securities that the holder presents for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be required to:
Information Concerning the Trustee
The trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the indenture and is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur. However, upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest payment.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Ranking Debt Securities
Subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness to the extent described in a prospectus supplement.
Senior debt securities will be unsecured and will rank equally in right of payment to all our other senior unsecured debt. The indenture does not limit the amount of senior debt securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
Existing Debt
As of June 30, 2017, we had $2.0 million in a loan payable to Silicon Valley Bank (which may be increased by $3.0 million subject to certain conditions), capital lease obligations for equipment amounting to $0.7 million, and an account payable to BioTime of $2.5 million associated with the BioTime shares we hold as available-for-sale securities. We have no other material existing debt.
General
We may offer warrants for the purchase of shares of common stock or preferred stock or debt securities, in one or more series. We may issue the warrants by themselves or together with common stock, preferred stock or debt securities, and the warrants may be attached to or separate from any offered securities. While the terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe in particular the terms of any series of warrants that we may offer in more detail in the applicable prospectus supplement and any applicable free writing prospectus. The terms of any warrants offered by a prospectus supplement may differ from the terms described below.
We will file as an exhibit to the registration statement of which this prospectus forms a part, or will incorporate by reference from another report that we file with the SEC, the form of warrant or warrant agreement, which may include a form of warrant certificate, as applicable, that describes the terms of the particular series of warrants we may offer before the issuance of the related series of warrants. We may issue the warrants under a warrant agreement that we will enter into with a warrant agent to be selected by us. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any registered holders of warrants or beneficial owners of warrants. The following summary of material provisions of the warrants and warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the form of warrant or warrant agreement and warrant certificate applicable to a particular series of warrants. We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the complete form of warrant or the warrant agreement and warrant certificate, as applicable, that contain the terms of the warrants.
The particular terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may include:
Each warrant will entitle its holder to purchase the principal amount of debt securities or the number of common stock or preferred stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement. The warrants may be exercised as set forth in the prospectus supplement relating to the warrants offered. Unless we otherwise specify in the applicable prospectus supplement, warrants may be exercised at any time up to the close of business on the expiration date set forth in the prospectus supplement relating to the warrants offered thereby. After the close of business on the expiration date, unexercised warrants will become void.
We will specify the place or places where, and the manner in which, warrants may be exercised in the form of warrant, warrant agreement or warrant certificate and applicable prospectus supplement. Upon receipt of payment and the warrant or warrant certificate, as applicable, properly completed and duly executed at the corporate trust office of any warrant agent, or any other office (including ours) indicated in the prospectus supplement, we will, as soon as practicable, issue and deliver the securities purchasable upon such exercise. If less than all of the warrants (or the warrants represented by such warrant certificate) are exercised, a new warrant or a new warrant certificate, as applicable, will be issued for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Prior to the exercise of any warrants to purchase common stock, preferred stock or debt securities, holders of the warrants will not have any of the rights of holders of common stock, preferred stock or debt securities purchasable upon exercise, including (i) in the case of warrants for the purchase of common stock or preferred stock, the right to vote or to receive any payments of dividends or payments upon our liquidation, dissolution or winding up on the common stock or preferred stock purchasable upon exercise, if any; or (ii) in the case of warrants for the purchase of debt securities, the right to receive payments of principal of, any premium or interest on, the debt securities purchasable upon exercise or to enforce covenants in the indenture.
Outstanding Warrants
As of June 30, 2017, we had outstanding warrants to purchase 3,049,221 shares of common stock, with a weighted-average exercise price of $3.41 per share. The warrants may be exercised for cash or, under certain circumstances, on a cashless basis, in which case we will deliver, upon exercise, the number of shares with respect to which the warrant is being exercised reduced by a number of shares having a value (as determined in accordance with the terms of the applicable warrant) equal to the aggregate exercise price of the shares with respect to which the warrant is being exercised.
The following description, together with the additional information we may include in any applicable prospectus supplement, summarizes the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement and any related free writing prospectus. The terms of any units offered by a prospectus supplement may differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We will file as an exhibit to the registration statement of which this prospectus forms a part, or will incorporate by reference from another report we file with the SEC, the form of unit agreement that describes the terms of the series of units we may offer under this prospectus, and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We may offer units comprised of any combination of our common stock, preferred stock, debt securities or warrants to purchase any of these securities, in one or more series. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units, including:
The provisions described in this section, as well as those described in the sections of this prospectus titled “Description of Common Stock and Preferred Stock,” “Description of Debt Securities” and “Description of Warrants” will apply to each unit and to any common stock, preferred stock, debt security or warrant included in each unit, respectively.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
We and any unit agent (including any of its agents) may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.
We may issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee or depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in “street name” will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, if we so specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered in the name of the depositary. Consequently, for global securities, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities that are not issued in global form. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not legal holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the legal holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the legal holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event, we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal holders contact the indirect holders is up to the legal holders.
Special Considerations for Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are represented by one or more global securities or in street name, please check with your own institution to find out:
Global Securities
A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under “—Special Situations When a Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and legal holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
As an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s bank, broker or other financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If securities are issued only as global securities, an investor should be aware of the following:
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, a global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own names, so that they will be direct holders. We have described the rights of holders and street name investors above.
A global security will terminate when the following special situations occur:
The applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and neither we nor any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
We may sell these securities directly to one or more investors. We may also sell these securities through agents designated from time to time or to or through underwriters or dealers. The applicable prospectus supplement and any related free writing prospectus will describe the terms of the offering of the securities, including, to the extent applicable:
We may distribute the securities from time to time in one or more transactions at:
Agents
We may designate agents who agree to use their reasonable efforts to solicit purchases of our securities for the period of their appointment or to sell our securities on a continuing basis. We will name any agent involved in the offering and sale of securities and we will describe any fees or commissions we will pay the agent in the applicable prospectus supplement.
Underwriters
If we use underwriters for a sale of securities, the underwriters will acquire the securities for their own account. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. Subject to certain conditions, the underwriters will be obligated to purchase all the securities of the series offered if they purchase any of the securities of that series. We may change from time to time any public offering price and any discounts or concessions the underwriters allow or reallow or pay to dealers. We may use underwriters with whom we have a material relationship. We will name any underwriter involved in the offering and sale of securities, describe any discount or other compensation and describe the nature of any material relationship in any applicable prospectus supplement. Only underwriters we name in the prospectus supplement will be underwritersvalidity of the securities offered by that prospectus supplement.
We may have agreements with the agents and underwriters to indemnify them against specified civil liabilities related to offerings under this prospectus including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities.
Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act, and any discounts or commissions they receive from us and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the Securities Act. We will identify in the applicable prospectus supplement any underwriters, dealers or agents and will describe their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against specified civil liabilities related to offerings under this prospectus, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Underwriters, dealers and agents may engage in transactions with or perform services for us in the ordinary course of their businesses.
Trading Markets and Listing of Securities
Unless otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established trading market, other than our common stock, which is currently listed on the NYSE American. We may elect to list or qualify for trading any other class or series of securities on any securities exchange or other market, but we are not obligated to do so. It is possible that one or more underwriters may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of the securities.
Stabilization Activities
Any underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of these activities at any time.
Passive Market Making
Any underwriter who is a qualified market maker on the NYSE American may engage in passive market making transactions in securities listed on the NYSE American in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the securities. A passive market maker must comply with applicable volume and price limitations and must be identified as a passive market maker. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security. If all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
Unless otherwise indicated in the applicable prospectus supplement, the validity of any common stock, preferred stock, debt securities, warrants or units offered under this prospectus and any supplement hereto will be passed upon for us by DLA PiperHaynes and Boone, LLP, (US), Seattle, Washington.New York, New York.
The consolidated financial statements of Oncocyte Corporation as of and for the year ended December 31, 2023, incorporated by reference in this registration statement and accompanying prospectus have been audited by Marcum LLP, an independent registered public accounting firm, as stated in their report, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern. Such consolidated financial statements have been incorporated herein by reference in reliance on the report of such firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements of Oncocyte Corporation as of and for the year ended December 31, 2022, incorporated by reference in this registration statement and accompanying prospectus have been audited by WithumSmith+Brown, PC, independent registered public accounting firm, as stated in their report. Such consolidated financial statements have been incorporated herein by reference in reliance on the report of such firm given upon their authority as experts in accounting and auditing.
EXPERTSWHERE YOU CAN FIND MORE INFORMATION
The balance sheets of OncoCyte CorporationWe have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities offered by this prospectus. This prospectus, filed as of December 31, 2016 and 2015,and the related statements of operations, comprehensive loss, stockholders’ equity (deficit), and cash flows for eachpart of the three yearsregistration statement, does not contain all the information set forth in the period ended December 31, 2016,registration statement and its exhibits and schedules, portions of which have been omitted as permitted by the rules and regulations of the SEC. For further information about us, we refer you to the registration statement and to its exhibits and schedules.
We file annual, quarterly and current reports and other information with the SEC. The SEC maintains an internet website at www.sec.gov that contains periodic and current reports, proxy and information statements, and other information regarding registrants that are filed electronically with the SEC.
These documents are also available, free of charge, through the Investors section of our website, which is located at www.oncocyte.com. Information contained on our website is not incorporated by reference into this prospectus and the registration statement in relianceyou should not consider information on the reportour website to be part of OUM & Co. LLP,this prospectus.
an independent registered public accounting firm, upon the authority of said firm as experts in auditing and accounting.INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
INFORMATION INCORPORATED BY REFERENCE
We are “incorporatingThe SEC allows us to “incorporate by reference” certain documentsthe information we filehave filed with the SEC,it, which means that we can disclose important information to you by referring you to those documents. The information in the documents incorporatedwe incorporate by reference is considered to bean important part of this prospectus. Statements contained in documentsprospectus, and later information that we file with the SEC and that are incorporated by reference into this prospectus will automatically update and supersede information contained in this prospectus, including information in previously filed documents or reports that have been incorporated by reference into this prospectus, to the extent the new information differs from or is inconsistent with the old information.
We hereby incorporate by reference into this prospectus the following documents that we have filed with the SEC under the Exchange Act File No. 001-37648(other than current reports on Form 8-K, or portions thereof,listed below and any future documents (excluding information furnished underpursuant to Items 2.02 orand 7.01 of Form 8-K):
All documents that we file with the SEC pursuant to SectionSections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than current reports on Form 8-K, or portions thereof, furnished under Items 2.02 or 7.01 of Form 8-K) (i) after the initial filing date of the registration statement of which this prospectus forms a part and priorsubsequent to the effectiveness of such registration statement and (ii) after the date of this prospectus and prior to the termination of the offering shall be deemedoffering:
| ● | Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on April 16, 2024; |
| ● | Our Current Reports on Form 8-K, filed with the SEC on April 11, 2024 and April 12, 2024; and |
| ● | The description of our common stock contained in our Registration Statement on Form 8-A, filed on March 1, 2021, as updated by Exhibit 4.13 to our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on April 16, 2024, and any amendments or reports filed for the purpose of updating such description. |
You should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to beprovide you with different information. Any statement contained in a document incorporated by reference into this prospectus fromwill be deemed to be modified or superseded for the datepurposes of filing of the documents, unless we specifically provide otherwise. Information that we file with the SEC will automatically update and may replace information previously filed with the SEC. Tothis prospectus to the extent that any informationa later statement contained in any current report on Form 8-K or any exhibit thereto, was or is furnished to, rather than filed with the SEC, such information or exhibit is specifically not incorporated by reference.
Upon written or oral request made to us at the address or telephone number below, we will, at no cost to the requester, provide to each person, including any beneficial owner, to whom this prospectus is delivered, a copy ofor in any or all of the information that has beenother document incorporated by reference into this prospectus (othermodifies or supersedes the earlier statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. You should not assume that the information in this prospectus is accurate as of any date other than an exhibit to a filing, unless that exhibit is specificallythe date of this prospectus or the date of the documents incorporated by reference into that filing), but not delivered within this prospectus:prospectus.
OncoCyte Corporation
1010 Atlantic Avenue, Suite 102
Alameda, California 94501
(510) 775-05155,419,788 Shares
WHERE YOU CAN FIND MORE INFORMATION
As permitted by SEC rules, this prospectus omits certain information that is included in the registration statement of which this prospectus forms a part and its exhibits. Since this prospectus may not contain all of the information that you may find important, we urge you to review the full text of these documents. If we have filed a contract, agreement or other document as an exhibit to the registration statement of which this prospectus forms a part, please read the exhibit for a more complete understanding of the document or matter involved. Each statement in thisprospectus, including statements incorporated by reference as discussed above, regarding a contract, agreement or other document is qualified in its entirety by reference to the actual document.COMMON STOCK
We are subject to the information reporting requirements of the Exchange Act and, in accordance with these requirements, we file annual, quarterly and current reports, proxy statements, information statements, and other information with the SEC. You may read and copy any materials we file with the SEC at the SEC’s Public Reference Room located at 100 F Street, NE, Washington, D.C., 20549. Information on the operation of the Public Reference Room may be obtained by calling the SEC at 1-800-SEC-0330. The SEC also maintains an internet site that contains these materials at www.sec.gov. In addition, weprovide free access to these materials throughour website,www.oncocyte.com,as soon as reasonably practicable after they are filed with or furnished to the SEC.
$50,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
PROSPECTUS
, 2017
PART IIII:
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the feesvarious costs and expenses incurred or expected to be incurredpayable by OncoCyte Corporation (the “Registrant”)us in connection with the issuance and distributionsale of the securities being registered hereby, other than underwriting discountsregistered. All such costs and commissions. Allexpenses shall be borne by us. Except for the Securities and Exchange Commission registration fee, all the amounts shown are estimates, except for the SEC registration fee.estimates.
| SEC registration fee | $ | 6,225 | ||
| NYSE American listing fee | * | |||
| FINRA filing fees | * | |||
| Accounting fees and expenses | * | |||
| Legal fees and expenses | * | |||
| Transfer agent fees and expenses | * | |||
| Printing and miscellaneous expenses | * | |||
| Total | $ | * |
| Securities and Exchange Commission Registration Fee | $ | 2,127.90 | ||
| Printing and engraving costs | $ | - | ||
| Legal fees and expenses | $ | 25,000 | ||
| Accounting fees and expenses | $ | 25,000 | ||
| Miscellaneous Fees and Expenses | $ | - | ||
| Total | $ | 52,127.90 |
Item 15. Indemnification of Directors and Officers
Section 317 of the California Corporations Code permits indemnification of directors, officers, employees and other agents of corporations under certain conditions andGeneral Corporation Law (“CGCL”) authorizes a corporation to indemnify, subject to certain limitations. In addition, Section 204(a)(10) of the California Corporations Code permits a corporation to provide, in its articles of incorporation, that directors shall not have liability to the corporation or its shareholders for monetary damages for breach of fiduciary duty, subject to certain prescribed exceptions. Article Five of the Registrant’s Articles of Incorporation contains provisions for the indemnification of directors, officers, employees and other agents within the limitations permitted by Section 317 and for the limitation on the personal liability of directors permitted by Section 204(b)(10), subject to the exceptions, required thereby.
Under Article VI of the Registrant’s bylaws, any person who is or was one of the Registrant’s directors or officers, employees, or other agents, or is or was serving at the Registrant’s request as a director, officer, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, or other enterprise, will be considered an “agent” entitled to indemnification against expenses arising under certain proceedings. To the maximum extent permitted by the California Corporations Code, the Registrant will indemnify any person who was or is a party or is threatened to be made a party to any proceeding (other than an action by or in the right of the Registrant)corporation to procure a judgment in its favor) by reason of the fact that thesuch person is or was an agent of the Registrant,corporation, as the term “agent” is defined in section 317(a) of the CGCL, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with the proceeding if that person acted in good faith and in a manner thatthe person reasonably believed to be in the best interests of the Registrantcorporation and, in the case of a criminal proceeding, had no reasonable cause to believe histhe conduct of the person was unlawful. The termination ofA corporation is further authorized to indemnify, subject to certain exceptions, any proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the agent did not act in good faith and in a manner which agent reasonably believed to be in the best interests of the Registrant or that the agent had reasonable cause to believe that his conduct was unlawful.
The Registrant will also indemnify any agents anyperson who was or is a party or is threatened to be made a party to any threatened, pending, or completed action by or in the right of the Registrantcorporation to procure a judgment in its favor by reason of the fact that the person is or was an agent of the Registrant ,corporation, against expenses actually and reasonably incurred by the agentthat person in connection with the defense or settlement of thatthe action if the agentperson acted in good faith, in a manner that the agentperson believed to be in the best interests of the Registrantcorporation and with such care, including reasonable inquiry,its shareholders.
Section 204 of the CGCL provides that a corporation’s articles of incorporation may include provisions eliminating or limiting the personal liability of a director for monetary damages in an action brought by or in the right of the corporation for breach of a director’s duties to the corporation and its shareholders, provided, however that they shall not limit the liability of directors (i) for acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, (ii) for acts or omissions that a director believes to be contrary to the best interests of the corporation or its shareholders or that involve the absence of good faith on the part of the director, (iii) for any transaction from which a director derived an improper personal benefit, (iv) for acts or omissions that show a reckless disregard for the director’s duty to the corporation or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director’s duties, of a risk of a serious injury to the corporation or its shareholders, (v) for acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the director’s duty to the corporation or its shareholders, (vi) under Section 310 of the CGCL (concerning transactions between corporations and directors or corporations having interrelated directors) or (vii) under Section 316 of the CGCL (concerning directors’ liability for distributions, loans, and guarantees).
Section 204 further provides that a corporation’s articles of incorporation may not limit the liability of directors for any act or omission occurring prior to the date when the provision became effective or any act or omission as an ordinarily prudent person inofficer, notwithstanding that the officer is also a like position would use under similar circumstances. No indemnification shall be made:director or that his or her actions, if negligent or improper, have been ratified by the directors.
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Further, Section 317 has no effect on claims arising under federal or state securities laws and does not affect the availability of injunctions and other equitable remedies available to a corporation’s shareholders for any violation of a director’s fiduciary duty to the corporation or its shareholders.
ToThe Company’s Articles of Incorporation provide that the liability of the directors of the Company for monetary damages shall be eliminated to the fullest extent permissible under California law and that the Company is authorized to indemnify “agents”, as such term is defined in Section 317 of the California Corporations Code, to the fullest extent permissible under California law.
Furthermore, the Company’s Bylaws provide that the Company shall, to the maximum extent and in the manner permitted by the CGCL, indemnify each of its directors and officers against expenses (as defined in Section 317(a) of the CGCL) judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any the proceeding (as defined in Section 317(a) of the CGCL) arising by reason of the fact that such person is or was an agent (as defined in Section 317(a) of the CGCL) of the Company. Furthermore, the Company’s Bylaws provide that the Company shall, have the power, to the extent and in the manner permitted by the CGCL, to indemnify each of its employees and agents (other than directors and officers) against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person is or was an employee or agent of the Registrant is successful on the merits in defense of any proceeding for which the agent is entitled to indemnification under the Registrant’s bylaws, the agent will be indemnified againstCompany. The Bylaws further provide that expenses of the defense actually and reasonably incurred.
Except as with respect to a successful defense on the merits in a proceeding, indemnification will be provided under the Registrant’s bylaws only if authorized in the specific case on a determination that indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in the Registrant’s bylaws, by:
Expenses incurred in defending any proceeding may be advanced by the Registrant beforeCompany prior to the final disposition of thesuch proceeding onupon receipt of an undertaking by or on behalf of the agentindemnified party to repay thesuch amount of the advance unlessif it shall be determined ultimately that the agentsuch person is not entitled to be indemnified as authorized in the Registrant’s bylaws.
Bylaws. The Registrant will not provide indemnification or advance expensesBylaws also permit the Company to purchase and maintain insurance on behalf of anany agent against any liability asserted against or incurred by the agent in any circumstance where it appears that itcapacity or arising out of the agent’s status as such whether or not the Company would be inconsistent with:have the power to indemnify the agent under Section 317 of the CGCL.
Further, the Company maintains directors’ and officers’ liability insurance coverage.
The foregoing summaries are necessarilysummary is subject to the complete text of the California Corporations Codeapplicable statutes, the Articles of Incorporation and the Registrant’s articles of incorporationBylaws, and bylaws.is qualified in its entirety by reference to such documents.
Item 16. Exhibits
| (b) | All schedules have been omitted because they are not required, are not applicable or the information is otherwise set forth in the financial statements and related notes thereto. |
| II-2 |
| * | Filed herewith |
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Item 17. Undertakings
The Registrant has obtained directors’undersigned registrant hereby undertakes:
(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;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the 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 officers’ liability insurance, as well as other typesany deviation from the low or high end of insurance, for its directors, officers, employeesthe estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and agentsprice 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.
(iii) To include any material information with respect to certain liabilities, including liabilities arisingthe plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that:
Paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act.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 that time shall be deemed to be the initial bona fide offering thereof.
Reference is made to Item 17(3) To remove from registration by means of a post-effective amendment any of the Registrant’s undertakingssecurities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B (§230.430B of this chapter):
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10 (a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with respecta time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 as amended (the “Securities Act”). Reference is also mademay be permitted to directors, officers and controlling persons of the registrant pursuant to the form of sales agreement filed as Exhibit 1.2, and any underwriting agreementforegoing provisions, or otherwise, the registrant has been advised that may be filed as Exhibit 1.1, to this registration statement for the indemnification agreements between the Registrant and the sales agent and any underwriters.
The list of exhibits in the Exhibit Index immediately following this registration statementopinion of the Securities and Exchange Commission such indemnification is incorporated hereinagainst 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 reference.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 in connection 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 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, as amended, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Alameda,Irvine, State of California, on October 2, 2017.May 10, 2024.
| Oncocyte Corporation | |||
| By: | /s/ | ||
| Name: | Josh Riggs | ||
| Title: | President and Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW BY ALL MEN BY THESE PRESENTS, that eachEach person whose signature appears below constitutes andhereby appoints William AnnettJosh Riggs as his or Alfred Kingsley as hisher true and lawful attorney-in-fact, and agent, with full power of substitution, and resubstitution, for him andwith the authority to execute in histhe name place and stead, inof each such person, any and all capacities,amendments (including without limitation, post-effective amendments) to this registration statement on Form S-3, to sign any and all Amendments hereto,additional registration statements relating to the same offering of securities as this registration statement that are filed pursuant to Rule 462(b) of the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith,such registration statements with the Securities and Exchange Commission, granting unto saidtogether with any exhibits thereto and other documents therewith, necessary or advisable to enable the registrant to comply with the Securities Act of 1933, and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, which amendments may make such other changes in the registration statement as the aforesaid attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and aboutexecuting the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.same deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Title | Date | |||
| /s/ | President and Chief Executive Officer and Director | |||
| /s/ | ||||
| (Principal Financial and Accounting Officer) | ||||
| /s/ Andrew Arno | Director | |||
| Andrew Arno | ||||
| /s/ | Director | |||
| Andrew J. Last | ||||
| /s/ | Director | |||
EXHIBIT INDEX
Exhibit Number | Exhibit Description | Incorporation by Reference | Filed Herewith | |||||||||
| Form | File Number | Exhibit No. | Filing Date | |||||||||
| 1.1* | Form of Underwriting Agreement | |||||||||||
| 4.1 | Specimen Common Stock Certificate | 10/A | 4.1 | 001-37648 | 12/29/2015 | |||||||
| 4.2* | Specimen preferred stock certificate and Form of Certificate of Designation of Preferred Stock | |||||||||||
| 4.3 | Form of Debt Indenture | X | ||||||||||
| 4.4* | Form of Debt Securities | |||||||||||
| 4.5 | Form of Common Stock Warrant Agreement and Warrant Certificate | X | ||||||||||
| 4.6 | Form of Preferred Stock Warrant Agreement and Warrant Certificate | X | ||||||||||
| 4.7 | Form of Debt Securities Warrant Agreement and Warrant Certificate | X | ||||||||||
| 4.6* | Form of Warrant | |||||||||||
| 4.7* | Form of Unit Agreement | |||||||||||
| 5.1 | Opinion of DLA Piper LLP (US) | X | ||||||||||
| 12.1 | Statement Regarding Computation of Ratio of Earnings to Fixed Charges and Preferred Stock Dividends | X | ||||||||||
| 23.1 | Consent of OUM & Co. LLP | X | ||||||||||
| 23.2 | Consent of DLA Piper LLP (US) (included in Exhibit 5.1) | X | ||||||||||
| 24.1 | Power of Attorney (included on signature page) | X | ||||||||||
| 25.1** | Statement of Eligibility of Trustee under the Debt Indenture | |||||||||||
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