As filed with the Securities and Exchange Commission on June 6, 2019July 14, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OncoCyteOncocyte Corporation
(Exact name of registrant as specified in its 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 AnnettMitchell Levine
President and Chief ExecutiveFinancial 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 to:With copies to:
Andrew LedbetterKandace Watson, Esq.
DLA Piper LLP (US)Nazia J. Khan, Esq.
701 Fifth Avenue,Shane Killeen, Esq.
Sheppard, Mullin, Richter & Hampton LLP
12275 El Camino Real, Suite 6900Seattle, Washington 98104100
San Diego, CA 92130
Tel: (858) 720-8900
Approximate date of commencement of proposed sale to the public:
From time to time, after the effective date of this registration statement.
If the only securities being registered on this Form 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: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,” and “emerging growth company” in Rule 12b-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. ☒
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Unit | Proposed Maximum Aggregate Offering Price | Amount of Registration | ||||||||||||
| Primary Offering | ||||||||||||||||
| Common stock, no par value | ||||||||||||||||
| Preferred Stock, no par value | ||||||||||||||||
| Warrants | ||||||||||||||||
| Units | ||||||||||||||||
| Total Primary Offering | (2) | $ | 100,000,000 | (2) | $ | 12,120 | (3) | |||||||||
| Secondary Offering | ||||||||||||||||
| Common stock, no par value | 22,775,656 | 4.17 | (4) | 94,974,486 | (4) | 11,511 | ||||||||||
| Common stock, no par value, underlying warrants | 2,763,653 | (5) | 5.50 | (6) | 15,200,092 | (6) | 1,843 | |||||||||
| Total | $ | 210,174,578 | $ | 25,474 | ||||||||||||
| Title of each class of securities to be registered | Amount to be registered(1)(3) | Proposed maximum offering price per share(3) | Proposed maximum aggregate offering price(3) | Amount of registration fee | ||||||||||||
| Common Stock, no par value | 9,436,465 | $ | 5.42 | (2) | $ | 51,145,640.30 | $ | 5,579.99 | ||||||||
| (1) | |
| (2) | |
| Estimated solely for | |
The registrantRegistrant hereby amends this registration statementRegistration Statement on such date or dates as may be necessary to delay its effective date until the registrantRegistrant shall file a further amendment that specifically states that this registration statementRegistration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statementthis 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 securitieschange. The selling shareholders may not be soldsell these securities pursuant to this registration statement until the registration statement filed with the U.S. 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.
$100,000,000
Common Stock
Preferred Stock
Warrants
UnitsPRELIMINARY PROSPECTUS
25,539,309 Shares
Common Stock
Offered by the Selling ShareholdersSUBJECT TO COMPLETION, DATED JULY 14, 2021
We may,
9,436,465 SHARES OF COMMON STOCK
This prospectus relates to the potential resale from time to time in one or more offerings, offer and sellof up to $100.0 million in the aggregate9,436,465 shares (“Resale Shares”) of common stock preferred stock, warrants, unitsof Oncocyte Corporation (“Company” or any combination of the foregoing, either individually or as a combination of one or more of these securities. This prospectus provides a general description of the securities we may offer. We will provide the specific terms of the securities offered 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 information contained in this prospectus. We may sell these securities directly to investors, through agents designated from time to time or to or through underwriters or dealers. See the section of this prospectus entitled “Plan of Distribution for the Company” for additional information. 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.
This prospectus also covers the offer and resale“Oncocyte”) by the selling shareholders identifiednamed in this prospectus. The Resale Shares consist of (i) 1,630,229 shares of Oncocyte common stock beneficially owned by certain selling shareholders; (ii) 7,213,089 shares (“Earnout Shares”) of Oncocyte common stock that may become issuable to certain selling shareholders as earnout payments pursuant to the terms of a Merger Agreement (as defined herein) described in this prospectus, contingent upon the achievement of milestones specified in the sectionMerger Agreement and whether Oncocyte elects to pay all or a portion of this prospectus entitled “Selling Shareholders,” or the Selling Shareholders,earnout payments to certain selling shareholders in shares of upOncocyte common stock; and (iii) 593,147 shares (“Restructured Shares”) of Oncocyte common stock that may become issuable to an aggregatecertain named selling shareholders as payments for restructured liabilities incurred by Chronix Biomedical, Inc. pursuant to the terms of 25,539,309agreements between Oncocyte and such selling shareholders contingent upon whether Oncocyte elects to pay all of a portion of the payments to the selling shareholder in shares of its common stock. We calculated the number of Earnout Shares based on the assumption that the maximum number of shares of our common stock that remains available for issuance pursuant to the Merger Agreement may be issued as earnout payments. The actual number of Earnout Shares issued to those selling shareholders as earnout payments, if any, could be materially less than 7,213,089 shares of common stock depending on (a) whether and to what extent the applicable future milestones are achieved, (b) the amount of offsets for certain liabilities of Chronix Biomedical, Inc., (c) whether we elect to pay all or a portion of the Resale Shares, consisting of (i) 22,775,656earnout payments to those selling shareholders in shares of our common stock, held byand (d) the Selling Shareholders, and (ii) 2,763,653 sharesactual closing price of our common stock issuableon the trading day immediately preceding the date upon which we publicly announce that a milestone has been satisfied. Likewise, the exerciseactual number of outstanding warrants held byRestructured Shares issued to the Selling Shareholders,selling shareholders as payments for restructured liabilities, if any, could be materially less than 593,147 shares of common stock depending on whether Oncocyte elects to pay all or a portion of the Warrants. restructured liabilities to certain of the selling shareholders in shares of its common stock. As such, Oncocyte will not issue all of the 9,436,465 shares of its common stock registered for resale in the registration statement. This presentation is not intended to constitute an indication or prediction of whether any of the future milestones will be achieved.
We will pay the expenses of registering the Resale Shares; however, we will not receive any of the proceeds from the sale of the Resale Shares being offered byShares.
The selling shareholders identified in this prospectus may offer the Selling Shareholders, although we may receive proceedsshares from cash exercisestime to time through public or private transactions at fixed prices, at prevailing market prices at the time of the Warrants. The Selling Shareholders are responsible for all discounts, selling commissions and other costssale, at prices related to their offer andthe prevailing market price, at varying prices determined at the time of sale, of the Resale Shares. If required, the number of Resale Shares to be sold, the public offering price of those Resale Shares, the names of any broker-dealers and any applicable commission or discount will be included in a supplement to this prospectus. at negotiated prices. The Selling Shareholders and any participating broker-dealers may be deemed to be “underwriters” within the meaning of the Securities Act of 1933, as amended, or the Securities Act, in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resaleregistration of the Resale Shares purchased by them may be deemed to be underwriting compensation underon behalf of the Securities Act.
Please read carefully this prospectus, all applicable prospectus supplements, any related free writing prospectuses, and the documents incorporated by reference herein and therein before you invest inselling shareholders, however, does not necessarily mean that any of our securities.This prospectus may not be used tothe selling shareholders will offer or sell their Resale Shares under this registration statement or at any securities unless accompaniedtime in the near future.
Investing in our common stock involves a high degree of risk. You should consider carefully the risk factors beginning on page 4 of this prospectus before purchasing any of the Resale Shares offered by the applicable prospectus supplement.this prospectus.
Our common stock is traded on the NYSE American LLC, or the NYSE American,The Nasdaq Global Market under the symbol “OCX”. On May 30, 2019, the“OCX.” The last reported salessale price of our common stock on the NYSE AmericanThe Nasdaq Global Market on July 13, 2021, was $4.07$5.73 per share.
We are an “emerging growth company” as that term is used inunder the Jumpstart Our Business Startups Act of 2012, or the JOBS Act,federal securities laws and, as such, have electedare subject to comply with certain reduced public company reporting requirements forrequirements.
We may amend or supplement this prospectus and our filings withfrom time to time by filing amendments or supplements as required. You should read the Securities and Exchange Commission.
Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page 3 of thisentire prospectus and under similar headings in the documents incorporated by reference into this prospectusany amendments or any applicable prospectus supplement or any related free writing prospectus for a discussion of the factors we urge you to considersupplements carefully before deciding to purchase our securities.you make your investment decision.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2019July 14, 2021.
TABLE OF CONTENTS
This prospectus is part of a registration statementYou should rely only on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, under the Securities Act, using a “shelf” registration process. Under this process, we 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 $100.0 million of any of the securities described in this prospectus. In addition, the Selling Shareholders may, from time to time, sell up to an aggregate of 25,539,309 shares of our common stock consisting of (i) 22,775,656 shares of our common stock held by the Selling Shareholders, and (ii) 2,763,653 shares of our common stock issuable upon exercise of the Warrants held by the Selling Shareholders, in one or more transactions as described in this prospectus.
This prospectus provides a general description of the securities we or the Selling Shareholders may offer. Each time we or the Selling Shareholders offer and sell securities under this prospectus, we or the selling shareholders will 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 haveas well as the information incorporated by reference into this prospectus with respect to that offering. To the extent there is a conflict between any statement contained in this prospectus,and any applicable prospectus supplement,supplement. Neither we nor the selling shareholders have authorized anyone to provide you with different information. Neither we nor the selling shareholders are making an offer of these securities in any related free writing prospectus or any document incorporated by reference into this prospectus,jurisdiction where the statement inoffer is not permitted. You should not assume that the document having the later date modifies or supersedes the earlier statement.
The information appearing in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only as of the date on the front of the document, and any information we havedocuments incorporated by reference is accurate only as of any date other than the date of the documentapplicable document. Since the respective dates of this prospectus and the documents incorporated by reference regardless of the time of delivery ofinto this prospectus, any applicable prospectus supplement or any related free writing prospectus, or the time of any sale of a security. Ourour business, financial condition, results of operations and prospects may have changed since those dates.changed.
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The following summary highlights some information from this prospectus. It is not complete and does not contain all of the information that you should consider before making an investment decision. You should rely onlyread this entire prospectus, including the “Risk Factors” section on page 4, the financial statements and related notes and the other more detailed information contained in,appearing elsewhere or incorporated by reference into this prospectus 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. Neither we nor the Selling Shareholders have authorized anyone to provide you with different or additional information. This prospectus is neither an offer to sell nor a solicitation of an offer to buy any securities other than those registered by this prospectus, nor is it an offer to sell or a solicitation of an offer to buy securities where an offer or solicitation would be unlawful.
As permitted by SEC rules and regulations, 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. See “Where You Can Find More Informationsupplement..”
The representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document incorporated by reference into this prospectus were made solely for the benefit of the parties to such agreement, including for the purpose of allocating risks among such parties, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants do not purport to be accurate as of any date other than when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This summary highlights selected information contained elsewhere in this prospectus. This summary is not complete and does not contain all the information you should consider before investing in our securities pursuant to this prospectus. Before making an investment decision, please carefully read this entire prospectus and the documents incorporated by reference into this prospectus, including the “Risk Factors” section of this prospectus and our financial statements and the related notes incorporated by reference into this prospectus. In this prospectus, unless the context otherwise requires, the terms “OncoCyte,” “we,” “us” or “our” refer to OncoCyte Corporation.
Overview
We are a molecular diagnostics company focused on developing and commercializing proprietary laboratory-developed tests, or LDTs, to serve unmet medical needs across the cancer care continuum. Our mission is to develop highly accurate, easyprovide actionable information to administer, non-invasivephysicians and patients at critical decision points to optimize diagnosis and treatment decisions, improve patient outcomes, and reduce overall cost of care. We have prioritized lung cancer as our first indication. Lung cancer remains the leading cause of cancer death in the United States, despite the availability of molecular testing and novel therapies to treat patients.
Our first commercial diagnostic test is a proprietary treatment stratification test called DetermaRx™ that identifies which patients with early stage non-small cell lung cancer may benefit from chemotherapy, resulting in a significantly higher, five-year survival rate. We are also developing multi-gene molecular, laboratory-developed diagnostic tests that we have branded as DetermaIO™. DetermaIO™ is a proprietary gene expression assay with promising data supporting its potential to improvehelp identify patients likely to respond to checkpoint inhibitor drugs. This new class of drugs modulates the standardimmune response and shows activity in multiple solid tumor types including non-small cell lung cancer, and triple negative breast cancer. DetermaIO™ is presently available for research use but one of careour goals is to complete development of that assay and to make it available for cancer diagnosis by better meeting the needs of patients, physiciansclinical use later this year. We also perform assay development and payers. Our current focus is developing DetermaVu™clinical testing services for pharmaceutical and biotechnology companies.
We recently added to our diagnostic test pipeline DetermaCNI™, a non-invasive molecular lung cancer confirmatory diagnosticpatented, blood-based test for immunotherapy monitoring. DetermaCNI was developed by Chronix Biomedical, Inc., which we acquired through a merger in April 2021. We plan to make the DetermaCNI monitor test available initially as a research tool.
Other tests in our development pipeline include DetermaTx™, a test that can be administeredwe are targeting for commercial launch later this year and that is intended to patientscompliment DetermaIO™ by assessing the mutational status of a tumor to help identify the appropriate targeted therapy. We also plan to initiate the development of DetermaMx™ as a blood test. DetermaVu™ utilizes proprietary setsbased test to monitor cancer patients for recurrence of gene expression markers to help confirm whether suspicious lung nodules detected through Low Dose Computed Tomography, or LDCT, scans, x-rays or other imaging are likely to be benign or malignant.
Molecular diagnostics such as DetermaVu™ are assays that identify a disease by studying molecules such as proteins, deoxyribonucleic acid, or DNA, and ribonucleic acid, or RNA, in a tissue or fluid. DetermaVu™ is based on our proprietary Immune System Interrogation approach that examines the body’s immune system response to a specific disease by measuring differential RNA expression in patients with the disease versus patients without thetheir disease. In the future, we may study whether our technology and Immune System Interrogation approach could have applications in other types of cancer or other diseases.
In January 2019 we completed an R&D Validation study of DetermaVu™ that demonstrated the accuracy of the DetermaVu™ assay in detecting lung cancer. The R&D Validation study demonstrated a sensitivity of 90% (95% CI 82%-95%) and specificity of 75% (95% CI 68%-81%) of DetermaVu™ on a prospectively collected cohort of 250 patient blood samples that were blinded to laboratory operators. Sensitivity is the percentage of malignant nodules that are correctly identified and specificity is the percentage of benign nodules correctly identified with correct identification in our study confirmed by biopsy results or serial imaging. A 95% confidence interval or “CI” suggests that there is a 95% chance that final test performance will be within the stated range. Notably, we obtained these results without including any clinical factors such as nodule size in our proprietary DetermaVu™ algorithm.
In April 2019, we successfully completed an Analytic Validation study and commenced a CLIA Validation study. The Analytic Validation Study involved a series of studies, as specified in guidelines for labs under the Clinical Laboratory Improvement Amendments of 1988, or CLIA, designed to establish the performance characteristics of the ThermoFisher Next Generation Sequencing System used for DetermaVu™. The CLIA Validation study currently underway involves assaying approximately 120 samples previously tested in our R&D Validation study in our CLIA validated lab using the assay system now analytically validated, with the goal of demonstrating that the assay system as being run in our CLIA lab provides the same results as those observed in our R&D Validation study.
We have prioritized our efforts on DetermaVu™ and lung cancer because we believe that the early detection of lung cancer is one of the greatest unmet needs in diagnostics. Our scientific approach is to measure the immune system’s response to disease and as such we believe that it may prove promising in other cancers and other disease areas.
Corporate Information
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.www.oncocyte.com. Information contained on, or accessiblethat can be accessed through, our website, is not, and shall not be deemed to be, incorporated in this prospectus supplement or considered a part thereof.
InvestingAny investment in our securitiescommon stock involves a high degree of risk and uncertainty.risk. Before making an investment decision with respectdeciding whether to purchase our securities, we urge you tocommon stock, investors should carefully consider the risks uncertainties and assumptionsdescribed below together with the “Risk Factors” described in our most recent Annual Report on Form 10-K which are incorporated herein by reference, as may be amended, supplemented or superseded from time to time by other reports we file with the U.S. Securities and Exchange Commission (“SEC”). Our business, financial condition, operating results and prospects are subject to the following material risks as well as those material risks incorporated by reference. Additional risks and uncertainties not presently foreseeable to us may also impair our business operations. If any of the following risks actually occurs, our business, financial condition or operating results could be materially adversely affected. In such case, the trading price of our common stock could decline, and our shareholders may lose all or part of their investment in the shares of our common stock.
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We are an emerging growth company and a smaller reporting company under U.S. securities laws and may take advantage of the reduced disclosure and governance requirements applicable to emerging growth companies and smaller reporting companies, which could make our common stock less attractive to investors.
We are an emerging growth company and smaller reporting company and may take advantage of certain exemptions from various reporting requirements that are otherwise applicable to public companies that are not emerging growth companies and/or smaller reporting companies including, but not limited to:
| ● | not being required to comply with the auditor attestation requirements regarding internal controls under Section 404 of the Sarbanes-Oxley Act of 2002, as amended (“Sarbanes-Oxley Act”); | |
| ● | reduced disclosure obligations regarding executive compensation in periodic reports and proxy statements; | |
| ● | exemptions from the requirements of holding a non-binding shareholder advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved; | |
| ● | exemption from the requirement to provide pay for performance disclosure; and | |
| ● | exemption from the requirement to provide compensation ratio disclosure. |
Moreover, we also are eligible under the Jumpstart Our Business Startups Act of 2012 for an exemption from compliance with any requirement that the Public Company Accounting Oversight Board may adopt regarding mandatory audit firm rotation or supplements to the auditor’s report providing additional information about the audit and the financial statements. We may take advantage of these reporting exemptions until we no longer are an emerging growth company. We will remain an “emerging growth company” until the earliest of (i) the last day of the fiscal year in which we have total annual gross revenues of $1.07 billion or more; (ii) the last day of our fiscal year following the fifth anniversary of the first sale of our common equity securities pursuant to an effective registration statement under the Securities Act of 1933, as amended (“Securities Act”); (iii) the date on which we have issued more than $1.0 billion in nonconvertible debt during the previous three years; or (iv) the date on which we are deemed to be a large accelerated filer under the rules of the SEC. Even after we no longer qualify as an emerging growth company, we may still continue to qualify as a “smaller reporting company,” which would allow us to take advantage of many of the same exemptions from the disclosure requirements described above, including not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, and being subject to reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statement.
We cannot predict if investors will find our common stock less attractive because we may rely on these exemptions. If some investors find our common stock less attractive as a result, there may be a less active trading market for our common stock and our stock price may be more volatile.
A sale of a substantial number of shares of common stock by the selling shareholders may cause the price of our common stock to decline.
If our shareholders sell, or the market perceives that our shareholders intend to sell for various reasons, substantial amounts of our common stock in the public market, the price of our common stock may decline. Additionally, such conditions may make it more difficult for us to sell equity or equity-related securities in the future at a time and price that we deem reasonable or appropriate.
The price of our stock may rise and fall rapidly.
The market price of our common stock, like that of the shares of many biotechnology companies, may be highly volatile. The price of our common stock may rise or fall rapidly as a result of a number of factors, including:
| ● | sales or potential sales of substantial amounts of our common stock; | |
| ● | results of or delays in preclinical testing or clinical trials of our diagnostic test candidates; |
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| ● | announcements about us or about our competitors, including clinical trial results, regulatory approvals, new diagnostic test introductions and commercial results; | |
| ● | the cost of our development programs; | |
| ● | the success of competitive diagnostic tests or technologies; | |
| ● | litigation and other developments relating to our intellectual property or other proprietary rights or those of our competitors; | |
| ● | conditions in the diagnostic, pharmaceutical or biotechnology industries; | |
| ● | actual or anticipated changes in estimates as to financial results, development timelines or recommendations by securities analysts; | |
| ● | variations in our financial results or those of companies that are perceived to be similar to us, including the failure of our earnings to meet analysts’ expectations; | |
| ● | general economic, industry and market conditions; | |
| ● | changes in payer coverage and/or reimbursement; and | |
| ● | impacts of the COVID-19 pandemic. |
Many of these factors are beyond our control. The stock markets in general, and the market for pharmaceutical and biotechnological companies in particular, have been experiencing extreme price and volume fluctuations, which have affected the market price of the equity securities without regard to the operating performance of the issuing companies. Broad market fluctuations, as well as industry factors and general economic and political conditions, may adversely affect the market price of our common stock.
We will not receive any proceeds from the sale of the Resale Shares by the selling shareholders pursuant to this prospectus,prospectus.
We are registering the applicableResale Shares that were, or may be, issued by us to the selling shareholders to permit the resale of these shares of common stock from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling shareholders of the Resale Shares.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement and the documents incorporated by reference hereininto this prospectus and therein, includingany applicable prospectus supplement may contain forward-looking statements within the risks describedmeaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended (“Exchange Act”), about the Company and its subsidiaries. These forward-looking statements are intended to be covered by the safe harbor for forward-looking statements provided by the Private Securities Litigation Reform Act of 1995. Forward-looking statements are not statements of historical fact, and can be identified by the use of forward-looking terminology such as “believes,” “expects,” “may,” “will,” “could,” “should,” “projects,” “plans,” “goal,” “targets,” “potential,” “estimates,” “pro forma,” “seeks,” “intends,” or “anticipates” or the negative thereof or comparable terminology. Forward-looking statements include, among other things, statements about:
| ● | the timing and potential achievement of future milestones; | |
| ● | the timing and our ability to obtain and maintain coverage and reimbursements from the Centers for Medicare and Medicaid Services and other third-party payers; | |
| ● | our plans to pursue research and development of diagnostic test candidates; | |
| ● | the potential commercialization of our diagnostic tests currently in development; | |
| ● | the timing and success of future clinical trials and the period during which the results of the clinical trials will become available; | |
| ● | the potential receipt of revenue from future sales of our diagnostic tests or tests in development; | |
| ● | our assumptions regarding obtaining reimbursement and reimbursement rates; | |
| ● | our estimates regarding future orders of tests and our ability to perform a projected number of tests; | |
| ● | our estimates and assumptions around patient populations, market size and price points for reimbursement for our diagnostic tests; | |
| ● | our estimates regarding future revenues and operating expenses, and future capital requirements; | |
| ● | our intellectual property position; |
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| ● | the impact of the COVID-19 pandemic on our operations and demand for our diagnostic tests and pharma services; | |
| ● | our ability to expand our operations in the United States and abroad; | |
| ● | the impact of government laws and regulations; and | |
| ● | our competitive position. |
We caution our shareholders and other readers not to place undue reliance on such statements.
You should read this prospectus and the documents incorporated by reference completely and with the understanding that our actual future results may be materially different from what we currently expect. Our business and operations are and will be subject to a variety of risks, uncertainties and other factors. Consequently, actual results may materially differ from those contained in any forward-looking statements. Such risks, uncertainties and other factors that could cause actual results to differ from those projected include, but are not limited to, the risk factors set forth herein under the title “Risk Factors,” section ofin our Annual Report on Form 10-K for the year ended December 31, 2018,2020, as may be amended, by Amendment No. 1 thereto on Form 10-K/A,supplemented or the Annual Report, and our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2019, which are incorporated by reference into this prospectus. We expect to update these risk factorssuperseded from time to time in the periodic and currentby other reports that we file with the SEC, after the date of this prospectus, which will be incorporated by reference into this prospectus. In connection with any specific offering, we also expect to provide risk factors and other informationelsewhere in the applicable prospectus supplement.
If one or more of the adverse events relevant to these risks and uncertainties actually occurs, our business, financial condition, results of operations, cash flows or prospects could be materially adversely affected. This could cause the trading price of our securities to decline, and you could lose all or part of your investment. Additional risks and uncertainties not presently known to us or that we currently deem immaterial also may have similar adverse effects on us.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents that are incorporated by reference into this prospectus contain or incorporate by reference forward-looking statements withinand any applicable prospectus supplement.
You should assume that the meaning of applicable securities laws. All statements, other than statements of historical fact, included or incorporated by referenceinformation appearing in this prospectus including but not limitedand any document incorporated herein by reference is accurate as of its date only. Because the risk factors referred to above could cause actual results or outcomes to differ materially from those regarding our strategy, plans, objectives, expectations, prospects, future operations, capital resources, financial position, projected costs of and progress with development of our diagnostic test, regulatory requirements and approvals, commercialization of our diagnostic test, collaborations, competition, market exclusivity, and intellectual property, are forward-looking statements. The words “believe,” “anticipate,” “estimate,” “plan,” “expect,” “intend,” “may,” “could,” “should,” “potential,” “likely,” “projects,” “continue,” “will,” and “would” and similar expressions are intended to identifyexpressed in any forward-looking statements although not all forward-looking statements contain these identifying words. We cannot guarantee that we actually will achieve the plans, intentionsmade by us or expectations expressed inon our forward-looking statements andbehalf, you should not place undue reliance on ourany forward-looking statements. There are a numberFurther, any forward-looking statement speaks only as of importantthe date on which the statement is made. New factors that couldemerge from time to time, and it is not possible for us to predict which factors will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause our actual results to differ materially from those indicated or implied bycontained in any forward-looking statements. These important factors include those discussed under the “Risk Factors” sections and elsewhere in our Annual Report and the other periodic reports and other filings that we file from time to time with the SEC. These factors and the other cautionary statements made in this prospectus and the documents incorporated by reference herein should be read as being applicable to all relatedAll written or oral forward-looking statements whenever they appear in this prospectus. The disclosure in this prospectus, includingattributable to us or any forward-looking statement, speaks only as of its date,person acting on our behalf made after the date of this prospectus orand any applicable prospectus supplement are expressly qualified in their entirety by the date of any documentrisk factors and cautionary statements contained in and incorporated by reference into this prospectus as applicable. We disclaimand any intention orapplicable prospectus supplement. Unless required by law, we do not undertake any obligation to update or reviserelease publicly any revisions to such forward-looking statement, whether as a result of new information, futurestatements to reflect events or otherwise, except as required by law.circumstances after the date of this prospectus and any applicable prospectus supplement or to reflect the occurrence of unanticipated events.
Except as described in any prospectus supplement in connection with a specific offering, we intend to use theThe net proceeds from our saleany disposition of the securities offered under this prospectus for working capital and general corporate purposes. The principal purposes for which we intend to use the net proceeds from a specific offering and the approximate amounts intended to be used for each such purposeResale Shares covered hereby will be set forth inreceived by the prospectus supplement relating to that offering.
selling shareholders. We will not receive any of the proceeds from the sale of theany such Resale Shares being offered by the Selling Shareholders, although we may receive proceeds from cash exercises of the Warrants.this prospectus.
DIVIDEND POLICYSELLING SHAREHOLDERS
We have never paid cash dividends on our capital stock and we do not anticipate paying cash dividends inThis prospectus relates to the foreseeable future, but intend to retain our capital resources for reinvestment in our business. Any future determination to pay cash dividends will be at the discretionoffering of our board of directors and will be dependent upon our financial condition, results of operations, capital requirements, requirements of our then-existing credit agreements and other factors as our board of directors deems relevant.
SECURITIES THAT MAY BE OFFERED
We may offer shares of common stock, shares of preferred stock, warrants, units consisting of a combination of the foregoing securities or any other combination of the foregoing. We may offer up to $100.0 million of securities under this prospectus. The prices and terms of any offering will be determined by market conditions at the time of offering. We may issue preferred stock that is exchangeable for or convertible into common stock or any of the other securities that may be sold under this prospectus. 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.
In addition, the Selling Shareholders may sell up to an aggregate of 25,539,3099,436,465 shares of our common stock consistingissued or to be issued to the selling shareholders named herein in connection with our acquisitions of Razor Genomics, Inc. (“Razor”) and Chronix Biomedical, Inc. (“Chronix”) in the first half of 2021.
Resale Shares Issued in Connection with our Acquisition of Razor
We issued 982,318 of the Resale Shares (“Razor Resale Shares”) to certain selling shareholders on or about February 24, 2021 pursuant to a Subscription and Stock Purchase Agreement, dated September 4, 2019 (“Razor Purchase Agreement”), by and among Oncocyte, Encore Clinical, Inc. (“Encore”), and Razor, and pursuant to certain Minority Holder Stock Purchase Agreements of like tenor with the shareholders of Razor other than Encore (“Minority Purchase Agreements”). As a result of the acquisition, Razor is now a wholly-owned subsidiary of Oncocyte. The Razor Resale Shares were issued to the former shareholders of Razor without registration under the Securities Act in reliance on an exemption from registration under Section 4(a)(2) of the Securities Act and Regulation D promulgated thereunder.
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Resale Shares Issued and Issuable in Connection with our Acquisition of Chronix
In connection with our acquisition of Chronix pursuant to the Amended and Restated Agreement and Plan of Merger (“Merger Agreement”), dated as of April 15, 2021 (“Closing Date”), by and among the Company, CNI Monitor Sub, Inc., Chronix, the shareholders party thereto and David MacKenzie as the equityholder representative, we delivered 647,911 shares of our common stock (“Chronix Closing Shares”) as of the Closing Date to certain selling shareholders pursuant to the Merger Agreement. We may also issue up to 7,213,089 Earnout Shares that may become issuable to certain selling shareholders as earnout payments pursuant to the terms of the Merger Agreement contingent upon the achievement of milestones specified in the Merger Agreement and/or up to 593,147 Restructured Shares that may become issuable to certain named selling shareholders as payments for restructured liabilities incurred by Chronix pursuant to the terms of agreements between us and such selling shareholders contingent upon whether we elect to pay all of a portion of the payments to the selling shareholder in shares of our common stock. However, pursuant to the Merger Agreement, we cannot issue all 7,213,089 Earnout Shares and all 593,147 Restructured Shares because the maximum number of our shares of common stock issuable under the Merger Agreement is 7,861,000 which is inclusive of the Chronix Closing Shares we have already issued. Nonetheless, we have included the maximum number of Earnout Shares and Restructured Shares in the total Resale Shares registered for resale pursuant to this prospectus because we have not yet determined the actual number of Earnout Shares and/or Restructured Shares we will issue in lieu of cash if the milestones set forth in the Merger Agreement are achieved. The shares issued pursuant to the Merger Agreement were or will be issued without registration under the Securities Act in reliance on an exemption from registration under Section 4(a)(2) of the Securities Act and Regulation D promulgated thereunder to persons reasonably believed to be “accredited investors” as defined in Rule 501 under the Securities Act, or pursuant to Regulation S under the Securities Act to non-U.S. persons located outside the United States.
The Earnout Shares have not been earned and have not been issued as of the date of this prospectus. The Merger Agreement provides for earnout payments of up to $14 million upon the achievement of certain milestones set forth therein, subject to offset for certain liabilities of Chronix. For purposes of this prospectus, we have calculated the number of Earnout Shares based on the assumption that the maximum number of shares of our common stock held bythat remains available for issuance pursuant to the Selling ShareholdersMerger Agreement may be issued as earnout payments. The actual number of Earnout Shares issued to the selling shareholders as earnout payments, if any, could be materially less than 7,213,089 shares of common stock depending on (a) whether and to what extent the applicable future milestones are achieved, (b) the amount of offsets for certain liabilities of Chronix, (c) whether we elect to pay all or a portion of the earnout payments to the selling shareholders in shares of our common stock, issuableand (d) the actual closing price of our common stock on the trading day immediately preceding the date upon exercisewhich we publicly announce that a milestone has been satisfied. Similarly, the Restructured Shares have not been issued as of the Warrants.date of this prospectus, and the actual number of Restructured Shares issued to the selling shareholders as payments for restructured liabilities, if any, could be materially less than 593,147 shares of common stock depending on whether we elect to pay all or a portion of the restructured liabilities to certain of the selling shareholders in shares of our common stock. As such, we will not issue all of the 9,436,465 shares of our common stock registered for resale pursuant to this prospectus. This presentation is not intended to constitute an indication or prediction of whether any of the future milestones will be achieved or the future market price of our common stock.
Certain Information Concerning the Selling Shareholders
The summaries below providefollowing table sets forth, based on information provided to us by or on behalf of the selling shareholders or known to us, the names of the selling shareholders, the nature of any position, office or other material relationship, if any, which the selling shareholders have had, within the past three years, with us or with any of our predecessors or affiliates, and the number of shares of our common stock beneficially owned by the selling shareholders before and after this offering. The number of shares owned are those beneficially owned, as determined under the rules of the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under these rules, beneficial ownership includes any shares of common stock as to which a general descriptionperson has sole or shared voting power or investment power and any shares of common stock that the person has the right to acquire within 60 days through the exercise of any option, warrant or right, through conversion of any security or pursuant to the automatic termination of a power of attorney or revocation of a trust, discretionary account or similar arrangement. Except as otherwise set forth herein, none of the selling shareholders are a broker-dealer or an affiliate of a broker-dealer.
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For each selling shareholder listed on the table, we have calculated the maximum number of Resale Shares that could potentially become saleable by such selling shareholder pursuant to this prospectus if such selling shareholder were to receive the maximum number of Earnout Shares and Restructured Shares issuable to such selling shareholder under the Merger Agreement. When those individual amounts are aggregated, it suggests that the total number of Resale Shares saleable pursuant to this prospectus is 9,436,465. However, the total number of Resale Shares saleable pursuant to this prospectus will not exceed an aggregate of 8,843,318 shares because if any of the 593,147 Restructured Shares are issued to some of the selling shareholders then the same number of Earnout Shares will be deducted from other selling shareholders, who may receive cash in lieu of shares, because the maximum number of our shares we can issue under the Merger Agreement cannot exceed 7,861,000 shares. We have already issued the Chronix Closing Shares under the Merger Agreement, and we can only issue up to 7,213,089 additional shares as Earnout Shares and/or Restructured Shares under the Merger Agreement.
For purposes of calculating the number of Resale Shares saleable pursuant to this prospectus, we have assumed that all of the Resale Shares issued or issuable to the selling shareholders covered by this prospectus are sold and that the selling shareholders acquire no additional shares of common stock before the completion of this offering. However, because the selling shareholders can offer all, some, or none of their Resale Shares, no definitive estimate can be given as to the number of Resale Shares that the selling shareholders will ultimately offer or sell under this prospectus or the number of Resale Shares that will be held by the selling shareholders upon termination of this offering.
Beneficial Ownership of Common Stock Prior to the Offering | Common Stock Saleable Pursuant | Beneficial Ownership of Common Stock After the Offering (1) | |||||||||||||||||||
Number of | Percent of | to This | Number of | Percent of | |||||||||||||||||
| Name of Selling Shareholder1 | Shares | Class (2) | Prospectus | Shares | Class (2) | ||||||||||||||||
| A. MIGUEZ & C. PARADA | 0 | 0 | % | 13,086 | (3) | 0 | 0 | % | |||||||||||||
| ADAMS FAMILY TRUST (4) | 0 | 0 | % | 4,139 | (5) | 0 | 0 | % | |||||||||||||
| ADV MED HOLDING (6) | 4,773 | * | 146,487 | (7) | 0 | 0 | % | ||||||||||||||
| ALEJANDRO PODGAEZKY | 0 | 0 | % | 10,067 | (8) | 0 | 0 | % | |||||||||||||
| ALEKSANDER WITOLD WIERCINSKI | 2,281 | * | 98,201 | (9) | 0 | 0 | % | ||||||||||||||
| ALLEN FINCH | 477 | * | 4,582 | (10) | 0 | 0 | % | ||||||||||||||
| AMY S. ULLMAN | 7,777 | * | 49,166 | (11) | 0 | 0 | % | ||||||||||||||
| ANDREW BENSON | 1,166 | * | 11,197 | (12) | 0 | 0 | % | ||||||||||||||
| ANISUZ CHOWDHURY | 0 | 0 | % | 13,086 | (13) | 0 | 0 | % | |||||||||||||
| ANNA METAXATOU | 0 | 0 | % | 10,067 | (14) | 0 | 0 | % | |||||||||||||
| ANTONIO FERREIRO | 0 | 0 | % | 18,120 | (15) | 0 | 0 | % | |||||||||||||
| ARTHUR RODERICK MACKENZIE | 0 | 0 | % | 17,916 | (16) | 0 | 0 | % | |||||||||||||
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| ASPAROUH ALEXANDROV | 0 | 0 | % | 6,040 | (17) | 0 | 0 | % | |||||||||||||
| BEATRIZ ENCINAS | 0 | 0 | % | 10,067 | (18) | 0 | 0 | % | |||||||||||||
| BEAUFORT NOMINEES LTD (19) | 0 | 0 | % | 25,167 | (20) | 0 | 0 | % | |||||||||||||
| BEHEKO CORP. LTD (21) | 4,773 | * | 394,036 | (22) | 0 | 0 | % | ||||||||||||||
| BENALMEDA FOUNDATION (23) | 1,194 | * | 11,464 | (24) | 0 | 0 | % | ||||||||||||||
| BOUSTEAD COMPANY LIMITED (25) | 61,805 | * | 61,805 | (26) | 0 | 0 | % | ||||||||||||||
| BOUSTEAD SECURITIES LLC (27) | 131,630 | * | 193,380 | (28) | 0 | 0 | % | ||||||||||||||
| BYZANTINE PARTNERS (29) | 10,249 | * | 261,520 | (30) | 0 | 0 | % | ||||||||||||||
| CARLOS JUNCO & ROSA MARIA RENEDO | 0 | 0 | % | 8,053 | (31) | 0 | 0 | % | |||||||||||||
| CHARLES SPENCER-SMITH | 0 | 0 | % | 10,067 | (32) | 0 | 0 | % | |||||||||||||
| CHARLOTTE MARIE KEATING, AS ADMINISTRATOR OF VICTOR MORRISH’S ESTATE | 18,643 | * | 178,958 | (33) | 0 | 0 | % | ||||||||||||||
| CLARA BASILE LIVING TRUST DTD 5/24/06 (34) | 2,386 | * | 43,611 | (35) | 0 | 0 | % | ||||||||||||||
| CONSTANCE WOLF LIVING TRUST (36) | 1,193 | * | 11,455 | (37) | 0 | 0 | % | ||||||||||||||
| CORIL HOLDINGS LTD (38) | 0 | 0 | % | 42,025 | (39) | 0 | 0 | % | |||||||||||||
| CRICKLADE INVESTMENTS LTD. (40) | 4,833 | * | 46,394 | (41) | 0 | 0 | % | ||||||||||||||
| DANAE PAPASTAMATI & ELLI KINATOU | 0 | 0 | % | 5,033 | (42) | 0 | 0 | % | |||||||||||||
| DANIEL B. DEBRA | 0 | 0 | % | 21,252 | (43) | 0 | 0 | % | |||||||||||||
| DAVID R. MACKENZIE | 82,669 | (44) | * | 17,916 | (45) | 82,669 | * | ||||||||||||||
| DEBORAH CAROL COOPER | 0 | 0 | % | 2,069 | (46) | 0 | 0 | % | |||||||||||||
| DISRUPTIVE VENTURES INC. (47) | 0 | 0 | % | 17,916 | (48) | 0 | 0 | % | |||||||||||||
| DONALD L. MACKENZIE | 0 | 0 | % | 17,916 | (49) | 0 | 0 | % | |||||||||||||
| DOROTA LANGE-SOCHA | 4,897 | * | 47,012 | (50) | 0 | 0 | % | ||||||||||||||
| DR. GERD BOHMER | 1,450 | * | 13,922 | (51) | 0 | 0 | % | ||||||||||||||
| DR. HELMUT WAGNER | 13,266 | * | 379,015 | (52) | 0 | 0 | % | ||||||||||||||
| DR. JAMAL Y.A. ALTARKAIT | 0 | 0 | % | 29,632 | (53) | 0 | 0 | % |
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| DR. MED CLAUDIA STOLTE | 1,450 | * | 13,922 | (54) | 0 | 0 | % | ||||||||||||||
| DR. RALF GLAUBITZ (55) | 13,297 | * | 127,647 | (56) | 0 | 0 | % | ||||||||||||||
| ELLEN ULLMAN | 4,365 | * | 49,859 | (57) | 0 | 0 | % | ||||||||||||||
| EMERSON STREET VENTURES (58) | 51,806 | * | 194,506 | (59) | 0 | 0 | % | ||||||||||||||
| EMILIO MARTINEZ | 0 | 0 | % | 7,550 | (60) | 0 | 0 | % | |||||||||||||
| ENERCHIEVE VENTURES LIMITED (61) | 27,213 | * | 261,229 | (62) | 0 | 0 | % | ||||||||||||||
| FIRST NATIONAL VENTURE CAPITAL (63) | 0 | 0 | % | 20,951 | (64) | 0 | 0 | % | |||||||||||||
| GABINO LALINDE | 1,775 | * | 32,143 | (65) | 0 | 0 | % | ||||||||||||||
| GARETH PICKERING | 2,685 | * | 76,108 | (66) | 0 | 0 | % | ||||||||||||||
| GARY PALMER | 2,386 | * | 22,910 | (67) | 0 | 0 | % | ||||||||||||||
| GONZALO PODGAEZKY | 0 | 0 | % | 10,067 | (68) | 0 | 0 | % | |||||||||||||
| HARRIS BERENHOLZ | 0 | 0 | % | 2,069 | (69) | 0 | 0 | % | |||||||||||||
| HARRY R. WOLF | 2,152 | (70) | * | 32,760 | (71) | 959 | * | ||||||||||||||
| HILLCREST PHARMACIES LTD (72) | 0 | 0 | % | 37,750 | (73) | 0 | 0 | % | |||||||||||||
| IGNACIO RUZ & REYES VELAZQUEZ | 0 | 0 | % | 5,033 | (74) | 0 | 0 | % | |||||||||||||
| INNOCREATIVE CAPITAL LLC (75) | 0 | 0 | % | 84,050 | (76) | 0 | 0 | % | |||||||||||||
| ITZIAR FERNANDEZ DE MENDIOLA | 355 | * | 8,442 | (77) | 0 | 0 | % | ||||||||||||||
| JACEK KWASIEWSKI | 1,194 | * | 11,464 | (78) | 0 | 0 | % | ||||||||||||||
| JAMES K. ROBERTSON, JR. | 0 | 0 | % | 75,072 | (79) | 0 | 0 | % | |||||||||||||
| JAVIER MIGUELEZ & DOLORES GONZALEZ | 976 | * | 17,427 | (80) | 0 | 0 | % | ||||||||||||||
| JOAN DYCK | 1,193 | * | 11,455 | (81) | 0 | 0 | % | ||||||||||||||
| JOHN CAMPBELL ROBERTSON | 0 | 0 | % | 15,100 | (82) | 0 | 0 | % | |||||||||||||
| JONATHAN FINNING | 233 | * | 2,239 | (83) | 0 | 0 | % | ||||||||||||||
| JOSE LUIS LACRUZ & MARINA SIFUENTES DE LACRUZ | 0 | 0 | % | 15,100 | (84) | 0 | 0 | % | |||||||||||||
| JOSE MANUEL RUZ & MARIA AFRICA SAMPALO | 0 | 0 | % | 5,033 | (85) | 0 | 0 | % |
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| JUAN LAGO | 1,710 | * | 16,423 | (86) | 0 | 0 | % | ||||||||||||||
| JUAN PINUAGA | 0 | 0 | % | 3,020 | (87) | 0 | 0 | % | |||||||||||||
| JURGEN FRERIKS | 1,418 | * | 13,616 | (88) | 0 | 0 | % | ||||||||||||||
| KAREN KNUDSON TRUST DTD 12/28/1999 (89) | 2,386 | * | 43,605 | (90) | 0 | 0 | % | ||||||||||||||
| KATINA TEGOPOULOU & LEONIDAS TEGOPOULOS | 710 | * | 11,851 | (91) | 0 | 0 | % | ||||||||||||||
| LEONIDAS MAVROUDIS & VASILEOS MAVROUDIS | 0 | 0 | % | 3,020 | (92) | 0 | 0 | % | |||||||||||||
| LIMITLESS EARTH PLC (93) | 0 | 0 | % | 251,665 | (94) | 0 | 0 | % | |||||||||||||
| LIQUID BIOPSY CENTER GMBH, GOTTINGEN (95) | 10,613 | * | 101,880 | (96) | 0 | 0 | % | ||||||||||||||
| LONGTAIL COVE LTD. (97) | 4,833 | * | 46,394 | (98) | 0 | 0 | % | ||||||||||||||
| LP INVISO GMBH (99) | 15,552 | * | 149,286 | (100) | 0 | 0 | % | ||||||||||||||
| M. DWYER & CATHERINE HARDIMAN | 2,386 | * | 73,243 | (101) | 0 | 0 | % | ||||||||||||||
| MAITANE MENDIOLA | 0 | 0 | % | 10,067 | (102) | 0 | 0 | % | |||||||||||||
| MANOLITA HERRAEZ | 0 | 0 | % | 3,020 | (103) | 0 | 0 | % | |||||||||||||
| MARIA LUISA GAVINO | 0 | 0 | % | 8,053 | (104) | 0 | 0 | % | |||||||||||||
| MARK STEPHENSON | 0 | 0 | % | 7,550 | (105) | 0 | 0 | % | |||||||||||||
| MARY CORKE | 0 | 0 | % | 17,916 | (106) | 0 | 0 | % | |||||||||||||
| MARZIA CARISSIMO | 0 | 0 | % | 8,053 | (107) | 0 | 0 | % | |||||||||||||
| MEI CHU | 4,773 | * | 45,821 | (108) | 0 | 0 | % | ||||||||||||||
| MICHAEL A. FREEMAN REVOCABLE TRUST U/A DTD 12/02/2004 (109) | 477 | * | 25,276 | (110) | 0 | 0 | % | ||||||||||||||
| MICHAL BARLOWSKI | 1,193 | * | 11,455 | (111) | 0 | 0 | % | ||||||||||||||
| MICHAEL H. DAVIES | 0 | 0 | % | 5,033 | (112) | 0 | 0 | % | |||||||||||||
| MIGUEL ANGEL ACEBES & FRANCISCA MORENO | 1,331 | * | 22,849 | (113) | 0 | 0 | % | ||||||||||||||
| SINGER 1995 FAMILY TRUST (114) | 4,773 | * | 301,469 | (115) | 0 | 0 | % | ||||||||||||||
| MORSAL, LLC (116) | 959 | * | 9,210 | (117) | 0 | 0 | % |
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| MURATTI TRADING S.A. (118) | 0 | 0 | % | 5,033 | (119) | 0 | 0 | % | |||||||||||||
| NICOLAS SANCHEZ | 0 | 0 | % | 5,033 | (120) | 0 | 0 | % | |||||||||||||
| NIGEL OXBROW & BINDY PEASE | 0 | 0 | % | 25,167 | (121) | 0 | 0 | % | |||||||||||||
| NORMA MACKENZIE | 0 | 0 | % | 84,278 | (122) | 0 | 0 | % | |||||||||||||
| OBERMAN/GARDNER REVOCABLE TRUST DTD 10/09/2021 (123) | 0 | 0 | % | 10,347 | (124) | 0 | 0 | % | |||||||||||||
| PAUL FREIMAN (125) | 1,555 | * | 8,759 | (126) | 0 | 0 | % | ||||||||||||||
| PAZ GOMEZ-RODULFO | 0 | 0 | % | 2,517 | (127) | 0 | 0 | % | |||||||||||||
| PEDRO LAGO | 1,322 | * | 12,691 | (128) | 0 | 0 | % | ||||||||||||||
| PETER AEGIDIUS | 710 | * | 21,917 | (129) | 0 | 0 | % | ||||||||||||||
| PETER C. MORSE | 4,773 | * | 46,181 | (130) | 0 | 0 | % | ||||||||||||||
| PETER L. STEIN REVOCABLE TRUST DATED OCTOBER 22, 2018 (131) | 1,477 | * | 25,919 | (132) | 0 | 0 | % | ||||||||||||||
| PETER MEYER AND KRISTEN YOUNT | 477 | * | 14,711 | (133) | 0 | 0 | % | ||||||||||||||
| PIERS N. PLOWMAN | 0 | 0 | % | 877,244 | (134) | 0 | 0 | % | |||||||||||||
| PIOTR GALAZKA | 1,396 | * | 13,403 | (135) | 0 | 0 | % | ||||||||||||||
| PROF. DR. BERND EIBEN | 7,978 | * | 76,588 | (136) | 0 | 0 | % | ||||||||||||||
| PROF. DR. EKKEHARD SCHUTZ (137) | 5,319 | * | 234,780 | (138) | 0 | 0 | % | ||||||||||||||
| RAFAEL SANCHEZ-LOZANO & ANA ISABEL VELASCO | 0 | 0 | % | 20,133 | (139) | 0 | 0 | % | |||||||||||||
| RAYMOND JAMES & ASSOC. INC. CSDN FBO WILLIAM M MITCHELL RIRA | 1,193 | * | 11,455 | (140) | 0 | 0 | % | ||||||||||||||
| RENEE B. PONDER/NONA STUCKELMAN | 0 | 0 | % | 10,347 | (141) | 0 | 0 | % | |||||||||||||
| RITESH RAMESH SANGHAVI | 10,296 | * | 10,296 | (142) | 0 | 0 | % | ||||||||||||||
| ROBERT CINNAMON | 3,888 | * | 37,326 | (143) | 0 | 0 | % | ||||||||||||||
| ROBERT LEPPO (144) | 21,137 | (145) | * | 10,888 | (146) | 10,249 | * | ||||||||||||||
| ROCHFORD YOUNG | 0 | 0 | % | 20,694 | (147) | 0 | 0 | % | |||||||||||||
| ROGER MOSS | 4,773 | * | 45,821 | (148) | 0 | 0 | % |
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| ROMIL PATEL | 0 | 0 | % | 15,150 | (149) | 0 | 0 | % | |||||||||||||
| ROY DYKES | 0 | 0 | % | 14,093 | (150) | 0 | 0 | % | |||||||||||||
| RUI MIGUEL LUCAS MENDES | 0 | 0 | % | 12,583 | (151) | 0 | 0 | % | |||||||||||||
| S. JANE MORRILL | 0 | 0 | % | 17,916 | (152) | 0 | 0 | % | |||||||||||||
| SAH DISTRIBUTION LTD (153) | 458 | * | 4,403 | (154) | 0 | 0 | % | ||||||||||||||
| SANDRA SLANKAMENAC | 0 | 0 | % | 12,080 | (155) | 0 | 0 | % | |||||||||||||
| SIMON MACNAB | 3,551 | * | 34,087 | (156) | 0 | 0 | % | ||||||||||||||
| SIMON SKELDING | 0 | 0 | % | 37,750 | (157) | 0 | 0 | % | |||||||||||||
| SOFIA BIRMAN | 2,388 | * | 22,929 | (158) | 0 | 0 | % | ||||||||||||||
| SOKRATIS METAXATOS | 0 | 0 | % | 2,517 | (159) | 0 | 0 | % | |||||||||||||
| SVEN KOSTER | 1,347 | * | 12,933 | (160) | 0 | 0 | % | ||||||||||||||
| TERESA TACHOVSKY TRUST DTD 12/28/1999 (161) | 2,386 | * | 43,605 | (162) | 0 | 0 | % | ||||||||||||||
| TERRY WALKER | 5,011 | (163) | * | 4,911 | (164) | 100 | * | ||||||||||||||
| THE ALAN F. MORCOS TRUST DATED 5/14/96 (165) | 0 | 0 | % | 20,694 | (166) | 0 | 0 | % | |||||||||||||
| THE HAROLD S. AND VERA STEIN REVOCABLE TRUST DTD 5/17/1995 (167) | 238 | * | 23,628 | (168) | 0 | 0 | % | ||||||||||||||
| THOMAS P. CALLAHAN | 0 | 0 | % | 20,695 | (169) | 0 | 0 | % | |||||||||||||
| TIMOTHY MH DODD | 935 | (170) | * | 4,582 | (171) | 458 | * | ||||||||||||||
| VICENTE GARCIA | 0 | 0 | % | 10,067 | (172) | 0 | 0 | % | |||||||||||||
| VICTORIA BIOVENTURES LTD. (173) | 0 | 0 | % | 100,666 | (174) | 0 | 0 | % | |||||||||||||
| TREVIA INVEST AG (175) | 0 | 0 | % | 125,833 | (176) | 0 | 0 | % | |||||||||||||
| TREVIA INVEST LIMITED (177) | 7,637 | * | 73,314 | (178) | 0 | 0 | % | ||||||||||||||
| VORACIOUS VENTURES, INC. (179) | 82,669 | * | 484,599 | (180) | 0 | 0 | % | ||||||||||||||
| WHITE MOVECVA LIMITED (181) | 4,773 | * | 171,654 | (182) | 0 | 0 | % | ||||||||||||||
| WIESLAWA MAJOREK | 2,360 | * | 22,656 | (183) | 0 | 0 | % | ||||||||||||||
| WLODZIMIERZ GAJEWSKI | 2,362 | * | 22,681 | (184) | 0 | 0 | % |
| -14- |
| WOLF FOUNDATION (185) | 954 | * | 9,164 | (186) | 0 | 0 | % | ||||||||||||||
| XINYUE GUO | 2,219 | * | 21,304 | (187) | 0 | 0 | % | ||||||||||||||
| YALDA JAMSHIDI | 0 | 0 | % | 2,970 | (188) | 0 | 0 | % | |||||||||||||
| YOKE MIN FAN | 1,710 | * | 75,956 | (189) | 0 | 0 | % | ||||||||||||||
| BIAO HE | 24,622 | * | 24,622 | (190) | 0 | 0 | % | ||||||||||||||
| ENCORE CLINICAL, INC. (191) | 698,047 | * | 698,047 | (192) | 0 | 0 | % | ||||||||||||||
| ERIC PETERSON | 6,155 | * | 6,155 | (193) | 0 | 0 | % | ||||||||||||||
| FATEMEH ZIAEI | 12,311 | * | 12,311 | (194) | 0 | 0 | % | ||||||||||||||
| KORT PETERSON | 6,155 | * | 6,155 | (195) | 0 | 0 | % | ||||||||||||||
| RUI MENG | 111,918 | * | 111,918 | (196) | 0 | 0 | % | ||||||||||||||
| SURVIVORS TRUST UNDER THE ROBERT AND MARY MINER FAMILY TRUST UAD 10/2/06 AS AMENDED (197) | 123,110 | * | 123,110 | (198) | 0 | 0 | % | ||||||||||||||
| JOHN SPEARMAN | 36,398 | * | 475,227 | (199) | 0 | 0 | % | ||||||||||||||
| WILLIAM A. BOEGER III (200) | 0 | 0 | % | 7,204 | (201) | 0 | 0 | % | |||||||||||||
| WILLIAM MITCHELL (202) | 0 | 0 | % | 7,204 | (203) | 0 | 0 | % | |||||||||||||
| BERTRAM BRENIG (204) | 0 | 0 | % | 25,246 | (205) | 0 | 0 | % | |||||||||||||
| JOHN DIPIETRO (206) | 0 | 0 | % | 300,818 | (207) | 0 | 0 | % | |||||||||||||
| TOTAL | 9,436,465 | (1) |
| * | Less than 1%. |
(1) For each selling shareholder listed in this table, we have calculated the maximum number of Resale Shares that could potentially become saleable by such selling shareholder pursuant to this prospectus, assuming certain shareholders receive the maximum number of Earnout Shares and Restructured Shares issuable to such selling shareholder under the Merger Agreement. When those individual amounts are aggregated, it suggests that the total number of our shares saleable pursuant to this prospectus is 9,436,465. However, the total number of our shares saleable pursuant to this prospectus will not exceed 8,843,318 shares because if any of the 593,147 Restructured Shares are issued to some of the selling shareholders then the same number of Earnout Shares will be deducted from other selling shareholders, who may receive cash in lieu of shares because the maximum number of our shares that we can issue under the Merger Agreement cannot exceed 7,861,000. We have already issued the Chronix Closing Shares under the Merger Agreement, and we can only issue up to 7,213,089 additional shares as Earnout Shares and/or Restructured Shares under the Merger Agreement. Therefore, some of the selling shareholders will never receive the maximum number of Earnout Shares and/or Restructured Shares listed in this table. Nonetheless, for purposes of this table, we have assumed that all of the Resale Shares issued or issuable to the selling shareholders covered by this prospectus will be sold and that the selling shareholders will not acquire any additional shares of common stock before the completion of this offering. However, as the selling shareholders can offer all, some, or none of their Resale Shares, no definitive estimate can be given as to the number of Resale Shares that the selling shareholders will ultimately offer or sell under this prospectus and the number of Resale Shares that will be held by the selling shareholders upon the termination of this offering.
| -15- |
(2) Calculated based on 91,459,069 shares of common stock issued and outstanding as of July 13, 2021.
(3) Consists of up to 13,086 Earnout Shares.
(4) John Adams is the Trustee of the Adams Family Trust and in such capacity has the right to vote and dispose of the securities weheld by such trust.
(5) Consists of up to 4,139 Earnout Shares.
(6) Christian Rocton is the President of ADV Med Holding and in such capacity has the Selling Shareholders may offerright to vote and dispose of the securities held by such entity. The address for ADV Med Holding is 26 Avenue Christian Doppler, Bailly-Romainvilliers, France 77100.
(7) Consists of (i) 4,773 Chronix Closing Shares and (ii) up to 141,714 Earnout Shares.
(8) Consists of up to 10,067 Earnout Shares.
(9) Consists of (i) 2,281 Chronix Closing Shares and (ii) up to 95,920 Earnout Shares.
(10) Consists of (i) 477 Chronix Closing Shares and (ii) up to 4,105 Earnout Shares.
(11) Consists of (i) 7,777 Chronix Closing Shares and (ii) up to 41,389 Earnout Shares.
(12) Consists of (i) 1,166 Chronix Closing Shares and (ii) up to 10,031 Earnout Shares.
(13) Consists of up to 13,086 Earnout Shares.
(14) Consists of up to 10,067 Earnout Shares.
(15) Consists of up to 18,120 Earnout Shares.
(16) Consists of up to 17,916 Earnout Shares.
(17) Consists of up to 6,040 Earnout Shares.
(18) Consists of up to 10,067 Earnout Shares.
(19) Tonia Kaufman and Colin Roy George Christmas are not intendedthe sole owners of Beaufort Nominees LTD and as such have the right to be complete.vote and dispose of the securities held by such entity. The particular termsaddress for Beaufort Nominees LTD is C/O Shard Wealth Management, 20 Fenchurch Street, 23rd Floor, London EC3M 3BY United Kingdom.
(20) Consists of any security will be describedup to 25,167 Earnout Shares.
(21) Charles B. Barlow, Jr. is the Chairman of the Board of Beheko Corp. LTD and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Beheko Corp. LTD is #305, 909-17 Avenue SW, Calgary, AB T2T 0A4, Canada.
(22) Consists of (i) 4,773 Chronix Closing Shares and (ii) up to 389,263 Earnout Shares.
(23) Dr. Dieter Neupert and Roland Ohri are the members of the Board of Benalmeda Foundation and in such capacity have the right to vote and dispose of the securities held by such foundation. The address for Benalmeda Foundation is Postrasse 2, Ruggell, Liechtenstein 9491.
| -16- |
(24) Consists of (i) 1,194 Chronix Closing Shares and (ii) up to 10,270 Earnout Shares.
(25) Dan McClory is the Chief Executive Officer of Boustead Company Limited and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Boustead Company Limited is 6 Venture, Suite 395, Irvine, CA 92618.
(26) Consists of up to 61,805 Chronix Closing Shares.
(27) Keith Moore is the Chief Executive Officer of Boustead Securities, LLC and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Boustead Securities, LLC is 6 Venture, Suite 395, Irvine, CA 92618.
(28) Consists of (i) 131,630 Chronix Closing Shares and (ii) up to 61,750 Earnout Shares.
(29) Robert Leppo owns all outstanding interests in Byzantine Partners and has the right to vote and dispose of the securities held by such entity. The address for Byzantine Partners is 532 Morninghome Road, Danville, CA 94526.
(30) Consists of (i) 10,249 Chronix Closing Shares and (ii) up to 251,270 Earnout Shares.
(31) Consists of up to 8,053 Earnout Shares.
(32) Consists of up to 10,067 Earnout Shares.
(33) Consists of (i) 18,643 Chronix Closing Shares and (ii) up to 160,315 Earnout Shares.
(34) Clara J. Basile is the Trustee of the Clara Basile Living Trust DTD 5/24/06 and in such capacity has the right to vote and dispose of the securities held by such trust.
(35) Consists of (i) 2,386 Chronix Closing Shares and (ii) up to 41,225 Earnout Shares.
(36) Constance Wolf is the Trustee of the Constance Wolf Living Trust and in such capacity has the right to vote and dispose of the securities held by such trust.
(37) Consists of (i) 1,193 Chronix Closing Shares and (ii) up to 10,262 Earnout Shares.
(38) R.N. Mannix is the controlling shareholder of Coril Holdings LTD and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Coril Holdings LTD is Suite 600, 1100 1st Street SE, Calgary, Alberta T2G 1B1.
(39) Consists of up to 42,025 Earnout Shares.
(40) Wojciech Kostrzewa is the director of Cricklade Investments Ltd. and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Cricklade Investments Ltd. is 4 Giro’s Passage, Suite 4, GX11 1AA Gibraltar.
(41) Consists of (i) 4,833 Chronix Closing Shares and (ii) up to 41,561 Earnout Shares.
(42) Consists of up to 5,033 Earnout Shares.
(43) Consists of up to 21,252 Earnout Shares.
(44) Consists of 82,669 Chronix Closing Shares acquired by Voracious Ventures, Inc. David R. Mackenzie is the President of Voracious Ventures, Inc. and in such capacity has the right to vote and dispose of the securities held by such entity.
| -17- |
(45) Consists of up to 17,916 Earnout Shares.
(46) Consists of up to 2,069 Earnout Shares.
(47) R. Allan MacKenzie is the President of Disruptive Ventures Inc. and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Disruptive Ventures Inc. is 1213 Prospect Ave SW, Calgary, AB T2T 0X4, Canada.
(48) Consists of up to 17,916 Earnout Shares.
(49) Consists of up to 17,916 Earnout Shares.
(50) Consists of (i) 4,897 Chronix Closing Shares and (ii) up to 42,115 Earnout Shares.
(51) Consists of (i) 1,450 Chronix Closing Shares and (ii) up to 12,472 Earnout Shares.
(52) Consists of (i) 13,266 Chronix Closing Shares and (ii) up to 365,749 Earnout Shares.
(53) Consists of up to 29,632 Earnout Shares.
(54) Consists of (i) 1,450 Chronix Closing Shares and (ii) up to 12,472 Earnout Shares.
(55) Dr. Ralf Glaubitz was a member of the board of directors of Chronix until its acquisition by Oncocyte in April 2021.
(56) Consists of (i) 13,297 Chronix Closing Shares and (ii) up to 114,350 Earnout Shares.
(57) Consists of (i) 4,365 Chronix Closing Shares and (ii) up to 45,494 Earnout Shares.
(58) William LK Powar is the Trustee of the Powar Family Revocable Trust that controls Emerson Street Ventures and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Emerson Street Ventures is 1310 Emerson Street, Palo Alto, CA 94301.
(59) Consists of (i) 51,806 Chronix Closing Shares and (ii) up to 142,700 Earnout Shares.
(60) Consists of up to 7,550 Earnout Shares.
(61) Xiaojing Liang is the President of Enerchieve Ventures Limited and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Enerchieve Ventures Limited is 111 Yonge Blvd., Toronto, ON M5M 3H2, Canada.
(62) Consists of (i) 27,213 Chronix Closing Shares and (ii) up to 234,016 Earnout Shares.
(63) Kevin Darrel Tetzlaff is the President of First National Venture Capital Inc. and in such capacity has the right to vote and dispose of the securities held by such entity. The address for First National Venture Capital Inc. is P.O. Box 5057, 520 6th Street, Brookings, SD 57006.
(64) Consists of up to 9,582 Earnout Shares.
(65) Consists of (i) 1,775 Chronix Closing Shares and (ii) up to 30,368 Earnout Shares.
(66) Consists of (i) 2,685 Chronix Closing Shares and (ii) up to 73,423 Earnout Shares.
(67) Consists of (i) 2,386 Chronix Closing Shares and (ii) up to 20,524 Earnout Shares.
| -18- |
(68) Consists of up to 10,067 Earnout Shares.
(69) Consists of up to 2,069 Earnout Shares.
(70) Consists of (i) 1,193 Chronix Closing Shares held by Harry R. Wolf and (ii) 959 Chronix Closing Shares held by Morsal, LLC. Harry R. Wolf is the President of Morsal, LLC and in such capacity has the right to vote and dispose of the securities held by such entity.
(71) Consists of (i) 1,193 Chronix Closing Shares and (ii) up to 31,567 Earnout Shares.
(72) Ila Patel is the Chief Executive Officer of Hillcrest Holdco Ltd which controls Hillcrest Pharmacies Ltd and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Hillcrest Pharmacies Ltd is C/O Shard Wealth Management, 20 Fenchurch Street, 23rd Floor, London EC3M 3BY United Kingdom.
(73) Consists of up to 37,750 Earnout Shares.
(74) Consists of up to 5,033 Earnout Shares.
(75) Michael Singer is the Trustee of the Singer 1995 Family Trust that controls Innocreative Capital LLC and in such capacity has the right to vote and dispose of the securities held by such entity.
(76) Consists of up to 84,050 Earnout Shares.
(77) Consists of (i) 355 Chronix Closing Shares and (ii) up to 8,087 Earnout Shares.
(78) Consists of (i) 1,194 Chronix Closing Shares and (ii) up to 10,270 Earnout Shares.
(79) Consists of up to 75,072 Earnout Shares.
(80) Consists of (i) 976 Chronix Closing Shares and (ii) up to 16,451 Earnout Shares.
(81) Consists of (i) 1,193 Chronix Closing Shares and (ii) up to 10,262 Earnout Shares.
(82) Consists of up to 15,100 Earnout Shares.
(83) Consists of (i) 233 Chronix Closing Shares and (ii) up to 2,006 Earnout Shares.
(84) Consists of up to 15,100 Earnout Shares.
(85) Consists of up to 5,033 Earnout Shares.
(86) Consists of (i) 1,710 Chronix Closing Shares and (ii) up to 14,713 Earnout Shares.
(87) Consists of up to 3,020 Earnout Shares.
(88) Consists of (i) 1,418 Chronix Closing Shares and (ii) up to 12,198 Earnout Shares.
(89) Karen J. Knudson is the Trustee of the Karen Knudson Trust DTD 12/28/1999 and in such capacity has the right to vote and dispose of the securities held by such trust.
(90) Consists of (i) 2,386 Chronix Closing Shares and (ii) up to 41,219 Earnout Shares.
(91) Consists of (i) 710 Chronix Closing Shares and (ii) up to 11,141 Earnout Shares.
| -19- |
(92) Consists of up to 3,020 Earnout Shares.
(93) Guido Contesso is the Chief Executive Officer of Limitless Earth Plc and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Limitless Earth Plc is Suite 2a1, Northside House, Mount Pleasant, Barnet, Hertfordshire, England, EN4 9EB.
(94) Consists of up to 251,665 Earnout Shares.
(95) Amedes MDL GmbH is controlled by amedes Holding GmbH, which is controlled by Antin Amedes Bidco GmbH, which is controlled by Antin Amedes Holdco GmbH, which is controlled by Antin Infrastructure Partners Luxembourg VIII S.a.r.l , which is controlled by Antin Infrastructure Partners Luxembourg VII S.a.r.l., which is controlled by various institutional investors with no ultimate beneficial shareholder holding more than 10% which controls Liquid Biopsy Center GMBG, Gottingen and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Liquid Biopsy Center GMBG, Gottingen is Nikolausberger Weg 22, Gottingen, Germany 37073.
(96) Consists of (i) 10,613 Chronix Closing Shares and (ii) up to 91,267 Earnout Shares.
(97) Christopher Roy Whittle is the President of Longtail Cove Ltd. and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Longtail Cove Ltd. is PO Box FL 180, Flatts, Bermuda FLBX.
(98) Consists of (i) 4,833 Chronix Closing Shares and (ii) up to 41,561 Earnout Shares.
(99) Lothor Probit is Chief Executive Officer of LP Inviso GMBH and in such capacity has the right to vote and dispose of the securities held by such entity. The address for LP Inviso GMBH is Untere Muehlstr. 38, Heuback, Germany 73540.
(100) Consists of (i) 15,552 Chronix Closing Shares and (ii) up to 133,734 Earnout Shares.
(101) Consists of (i) 2,386 Chronix Closing Shares and (ii) up to 70,857 Earnout Shares.
(102) Consists of up to 10,067 Earnout Shares.
(103) Consists of up to 3,020 Earnout Shares.
(104) Consists of up to 8,053 Earnout Shares.
(105) Consists of up to 7,550 Earnout Shares.
(106) Consists of up to 17,916 Earnout Shares.
(107) Consists of up to 8,053 Earnout Shares.
(108) Consists of (i) 4,773 Chronix Closing Shares and (ii) up to 41,048 Earnout Shares.
(109) Michael A. Freeman is the Trustee of Michael A. Freeman Revocable Trust U/A DTD 12/02/2004 and in such capacity has the right to vote and dispose of the securities held by such trust.
(110) Consists of (i) 477 Chronix Closing Shares and (ii) up to 24,799 Earnout Shares.
(111) Consists of (i) 1,193 Chronix Closing Shares and (ii) up to 10,262 Earnout Shares.
(112) Consists of up to 5,033 Earnout Shares.
| -20- |
(113) Consists of (i) 1,331 Chronix Closing Shares and (ii) up to 21,518 Earnout Shares.
(114) Michael Singer is the Trustee of the Singer 1995 Family Trust and in such capacity has the right to vote and dispose of the securities held by such trust.
(115) Consists of (i) 4,773 Chronix Closing Shares and (ii) up to 296,696 Earnout Shares.
(116) Harry R. Wolf is the President of Morsal, LLC and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Morsal, LLC is 1936 Maple Circle, West Des Moines, Iowa 50265.
(117) Consists of (i) 959 Chronix Closing Shares and (ii) up to 8,251 Earnout Shares.
(118) Stamatios Theloudis is a Director of Muratti Trading S.A. and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Muratti Trading S.A. is Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 c/o Stamos Theloudis, Attorney at Law, 107 Ramnoundos Street, 14234 Nealonia, Athens, Greece.
(119) Consists of up to 5,033 Earnout Shares.
(120) Consists of up to 5,033 Earnout Shares.
(121) Consists of up to 25,167 Earnout Shares.
(122) Consists of up to 84,278 Earnout Shares.
(123) William Oberman and Shirley Gardner are the Trustees of The Oberman/Gardner Revocable Trust DTD 10/09/2021 and in such capacity have the right to vote and dispose of the securities held by such trust.
(124) Consists of up to 10,347 Earnout Shares.
(125) Paul Freiman was a member of the board of directors of Chronix until its acquisition by Oncocyte in April 2021.
(126) Consists of (i) 1,555 Chronix Closing Shares and (ii) up to 7,204 Earnout Shares.
(127) Consists of up to 2,517 Earnout Shares.
(128) Consists of (i) 1,322 Chronix Closing Shares and (ii) up to 11,369 Earnout Shares.
(129) Consists of (i) 710 Chronix Closing Shares and (ii) up to 21,207 Earnout Shares.
(130) Consists of (i) 4,773 Chronix Closing Shares and (ii) up to 41,408 Earnout Shares.
(131) Peter L. Stein is the Trustee of the Peter L. Stein Revocable Trust dated October 22, 2018 and in such capacity has the right to vote and dispose of the securities held by such trust.
(132) Consists of (i) 477 Chronix Closing Shares and (ii) up to 25,442 Earnout Shares.
(133) Consists of (i) 477 Chronix Closing Shares and (ii) up to 14,234 Earnout Shares.
(134) Consists of up to 877,244 Earnout Shares.
(135) Consists of (i) 1,396 Chronix Closing Shares and (ii) up to 12,007 Earnout Shares.
(136) Consists of (i) 7,978 Chronix Closing Shares and (ii) up to 68,610 Earnout Shares.
| -21- |
(137) Dr. Ekkehard Schutz was the Chief Executive Officer, Chief Medical Officer and Managing Director of Chronix until its acquisition by Oncocyte in April 2021. Since the acquisition, Dr. Schutz serves as the General Manager and Chief Medical Officer of Oncocyte Europe.
(138) Consists of (i) 5,319 Chronix Closing Shares and (ii) up to 229,461 Earnout Shares
(139) Consists of up to 20,133 Earnout Shares.
(140) Consists of (i) 1,193 Chronix Closing Shares and (ii) up to 10,262 Earnout Shares.
(141) Consists of up to 10,347 Earnout Shares.
(142) Consists of 10,296 Chronix Closing Shares.
(143) Consists of (i) 3,888 Chronix Closing Shares and (ii) up to 33,438 Earnout Shares.
(144) Robert Leppo was a member of the board of directors of Chronix until its acquisition by Oncocyte in April 2021.
(145) Consists of (i) 10,888 Chronix Closing Shares held by Robert Leppo and (ii) 10,249 Chronix Closing Shares held by Byzantine Partners. Robert Leppo owns all of the issued and outstanding equity interests of Byzantine Partners and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Byzantine Partners is 532 Morninghome Road, Danville, CA 94526.
(146) Consists of 10,888 Chronix Closing Shares.
(147) Consists of up to 20,694 Earnout Shares.
(148) Consists of (i) 4,773 Chronix Closing Shares and (ii) up to 41,048 Earnout Shares.
(149) Consists of up to 15,150 Earnout Shares.
(150) Consists of up to 14,093 Earnout Shares.
(151) Consists of up to 12,583 Earnout Shares.
(152) Consists of up to 17,916 Earnout Shares.
(153) Timothy MH Dodd is a director of SAH Distribution Ltd. and in such capacity has the right to vote and dispose of the securities held by such entity. The address for SAH Distribution Ltd. is 2 Admiral Way, Marden, Kent TN12 9FN, United Kingdom.
(154) Consists of (i) 458 Chronix Closing Shares and (ii) up to 3,945 Earnout Shares.
(155) Consists of up to 12,080 Earnout Shares.
(156) Consists of (i) 3,551 Chronix Closing Shares and (ii) up to 14,615 Earnout Shares.
(157) Consists of up to 37,750 Earnout Shares.
(158) Consists of (i) 2,388 Chronix Closing Shares and (ii) up to 20,541 Earnout Shares.
(159) Consists of up to 2,517 Earnout Shares.
(160) Consists of (i) 1,347 Chronix Closing Shares and (ii) up to 11,586 Earnout Shares.
| -22- |
(161) Teresa M. Tachovsky is the Trustee of the Teresa Tachovsky Trust DTD 12/28/1999 and in such capacity has the right to vote and dispose of the securities held by such trust.
(162) Consists of (i) 2,386 Chronix Closing Shares and (ii) up to 41,219 Earnout Shares.
(163) Consists of (i) 4,911 Chronix Closing Shares and (ii) 100 shares of common stock held by Terry Walker.
(164) Consists of 4,911 Chronix Closing Shares.
(165) Alan Marcos is the Trustee of The Alan F. Morcos Trust dated 5/14/96 and in such capacity has the right to vote and dispose of the securities held by such trust.
(166) Consists of up to 20,694 Earnout Shares.
(167) Harold Sigfired Stein, Jr. is the Trustee of The Harold S. and Vera Stein. Revocable Trust DTD 5/17/1995 and in such capacity has the right to vote and dispose of the securities held by such trust.
(168) Consists of (i) 238 Chronix Closing Shares and (ii) up to 23,390 Earnout Shares.
(169) Consists of up to 20,695 Earnout Shares.
(170) Consists of (i) 477 Chronix Closing Shares held by Timothy MH Dodd and (ii) 458 Chronix Closing Shares held by SAH Distribution Ltd. Timothy MH Dodd is a director of SAH Distribution Ltd. and in such capacity has the right to vote and dispose of the securities held by such entity. The address for SAH Distribution Ltd. is 2 Admiral Way, marden, Kent TN12 9FN, United Kingdom.
(171) Consists of (i) 477 Chronix Closing Shares and (ii) up to 4,105 Earnout Shares.
(172) Consists of up to 10,067 Earnout Shares.
(173) Tomas Rudolf Iacobaeus, Jan Peter Niklas Svanlund, and Anna Linnea Kristina Seeley are directors of Victoria Bioventures Ltd. and in such capacity have the right to vote and dispose of the securities held by such entity. The address for Victoria Bioventures Ltd. is Gauggelistrasse 7, Chur CH-7000 Switzerland.
(174) Consists of up to 100,666 Earnout Shares.
(175) Roland Oehri and Christoph G. Bandyk are trustees of the ARK Foundation which controls Trevia Invest AG and in such capacity have the right to vote and dispose of the securities held by such entity. The address for Trevia Invest AG is Postrasse AG, c/o LOPAG Trust REG., Ruggell, FL-9491, Liechtenstein.
(176) Consists of up to 125,833 Earnout Shares.
(177) Roland Oehri and Christoph G. Bandyk are trustees of the ARK Foundation which controls Trevia Invest Limited and in such capacity have the right to vote and dispose of the securities held by such entity. The address for Trevia Invest Limited is Postrasse AG, c/o LOPAG Trust REG., Ruggell, FL-9491, Liechtenstein.
(178) Consists of (i) 7,637 Chronix Closing Shares and (ii) up to 65,677 Earnout Shares.
(179) David R. MacKenzie is the President of Voracious Ventures, Inc. and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Voracious Ventures, Inc. is 1802, 788 - 12 Avenue SW, Calgary, AB T2R 0H1, Canada.
(180) Consists of (i) 82,669 Chronix Closing Shares and (ii) up to 401,930 Earnout Shares.
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(181) K Investments Sp 200 is the controlling entity of White Movecva Limited and in such capacity has the right to vote and dispose of the securities held by White Movecva Limited. The address for White Movecva Limited is 11 Zinonos Sozou Street Flat 301, 1075 Nicosia, Cyprus, Greece.
(182) Consists of (i) 4,773 Chronix Closing Shares and (ii) up to 166,881 Earnout Shares.
(183) Consists of (i) 2,360 Chronix Closing Shares and (ii) up to 20,296 Earnout Shares.
(184) Consists of (i) 2,362 Chronix Closing Shares and (ii) up to 20,319 Earnout Shares.
(185) Abe Wolf is the Trustee of the Wolf Foundation and in such capacity has the right to vote and dispose of the securities held by such foundation. The address for the Wolf Foundation is 3101 Ingersoll Ave., Suite 300, Des Moines, Iowa 50312.
(186) Consists of (i) 954 Chronix Closing Shares and (ii) up to 8,210 Earnout Shares.
(187) Consists of (i) 2,219 Chronix Closing Shares and (ii) up to 19,085 Earnout Shares.
(188) Consists of up to 2,970 Earnout Shares.
(189) Consists of (i) 1,710 Chronix Closing Shares and (ii) up to 74,246 Earnout Shares.
(190) Consists of 24,622 Razor Resale Shares.
(191) Michael Mann is the Chief Executive Officer of Encore Clinical, Inc. and in such capacity has the right to vote and dispose of the securities held by such entity. The address for Encore Clinical, Inc. is 27709 Via Cerro Gordo, Los Altos Hills, CA 94022. Encore is a party to the following agreements with Oncocyte: (i) Exclusive Sublicense Agreement in the applicable prospectus supplement.PRC Territory, dated December 14, 2020, by and among Razor, Oncocyte, Encore, and Burning Rock Biotech Limited; (ii) Development Agreement, dated September 30, 2019, by and among Oncocyte, Encore and Razor; (iii) Sublicense and Distribution Agreement, dated September 30, 2019, by and among Oncocyte, Encore and Razor; and (iv) Laboratory Services Agreement, dated August 15, 2015, as amended, by and among Oncocyte, Encore and Razor.
(192) Consists of 698,047 Razor Resale Shares.
(193) Consists of 6,155 Razor Resale Shares.
(194) Consists of 12,311 Razor Resale Shares.
(195) Consists of 6,155 Razor Resale Shares.
(196) Consists of 111,918 Razor Resale Shares.
(197) Mary Miner has voting control of the Survivors Trust under the Robert and Mary Miner Family Trust UAD 10/2/06 as amended and in such capacity has the right to vote and dispose of the securities held by such trust.
(198) Consists of 123,110 Razor Resale Shares.
(199) Consists of (i) 36,398 Chronix Closing Shares and (ii) up to 196,003 Earnout Shares.
(200) William A. Boeger III was a member of the board of directors of Chronix until its acquisition by Oncocyte in April 2021.
(201) Consists of up to 7,204 Restructured Shares.
(202) William Mitchell was a member of the board of directors of Chronix until its acquisition by Oncocyte in April 2021.
(203) Consists of up to 7,204 Restructured Shares.
(204) Bertram Brenig rendered consulting services to Chronix until its acquisition by Oncocyte in April 2021.
(205) Consists of up to 25,246 Restructured Shares.
(206) John DiPietro served as the Chief Financial Officer of Chronix until its acquisition by Oncocyte in April 2021. Since the acquisition, Mr. DiPietro has provided services to Oncocyte from time to time.
(207) Consists of up to 300,818 Restructured Shares.
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The following is a summary description of the material terms of our common stock as provided in our (i) Articles of Incorporation, as amended (“Articles of Incorporation”), and preferred stock, together with any additional information we include in any applicable prospectus supplement, documents(ii) Amended and Restated Bylaws (“Bylaws”), copies of which are incorporated by reference as exhibits to the registration statement of which this prospectus forms a part. The following discussion is only a summary and may not contain all the information that is important to you or any related free writing prospectus, summarizes the material termsthat you should consider before investing in our stock, and provisions of our common stock that we and the Selling Shareholders may offer, and the preferred stock that we may offer, under this prospectus. We will describe the particular terms of any class or series of these securities in more detail in the applicable prospectus supplement. The description of our capital stock below is summarized from, and qualified in its entirety by reference to the complete text of the Articles of Incorporation and Bylaws. For a more detailed description of these securities, you should read the applicable provisions of California law, our articlesArticles of incorporationIncorporation, our Bylaws and our bylaws, in each case, as amended and as in effect on the date of this prospectus, each of which has been publicly filedreports that we file with the SEC. Certain terms of our capital stock described belowSEC, which are also based on the California Corporations Code as in existence on the date of this prospectus, and may be affectedincorporated herein by future amendments to such code.reference.
General
Our articlesArticles of incorporationIncorporation currently authorizes the issuance of up to 85,000,000230,000,000 shares of common stock, no par value, and up to 5,000,000 shares of preferred stock, no par value.
Common Stock
As of July 13, 2021, there were 91,459,069 shares of our common stock issued and outstanding
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.vote; provided, that if any shareholder entitled to vote at a meeting at which directors are to be elected gives timely notice of their intention to cumulate votes in the election of directors, shareholders may cumulate votes for the election of directors.
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.
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 our common stock are entitled to receive, on a pro rata basis, all of our remaining assets available for distribution to the holders of our common stock in the event of the liquidation, dissolution, or winding up of our operations. Holders of our common stock do not have any preemptive, subscription, or conversion rights. There are no redemption rights. Allor sinking fund provisions applicable to our common stock. The rights, powers, preferences and privileges of the outstanding sharesholders of our common stock are fully paidsubject to those of the holders of any shares of our preferred stock that may be issued in the future.
Preferred Stock
Pursuant to the Articles of Incorporation, our board of directors has the authority, without action by the Company’s shareholders, to designate and non-assessable.issue up to 5,000,000 shares of preferred stock in one or more series and to designate the rights, preferences, and limitations of all such series, any or all of which may be superior to the rights of our common stock. It is not possible to state the actual effect of the issuance of any shares of our preferred stock upon the rights of the holders of our common stock until our board of directors determines the specific rights of the holders of our preferred stock. However, effects of the issuance of our preferred stock may include restricting dividends on our common stock, diluting the voting power of our common stock, impairing the liquidation rights of our common stock, and making it more difficult for a third party to acquire us, which could have the effect of discouraging or preventing a third party from acquiring, or deterring a third party from paying a premium to acquire, all or a majority of our outstanding capital stock. There are no shares of preferred stock presently outstanding and we have no present plan, arrangement, or commitment to issue any preferred stock.
Listing
Our common stock is listed on the NYSE AmericanThe Nasdaq Global Market under the symbol “OCX.”
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Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC, 6201 15th Avenue, Brooklyn, New York 11219.
Preferred StockAnti-Takeover Provisions of California Law, the Articles of Incorporation, and the Bylaws
WeOur Articles of Incorporation and Bylaws contain provisions that may issue preferred stockmake it difficult for a third party to acquire us, or for a change in one or more series, at any time, with such rights, preferences, privileges and restrictions asthe composition of 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 senioror management 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.
The rights, privileges, preferences and restrictions of any class or series of preferred stock may be subordinated to,pari passuwith or senior to any of those of any present or future class or series of preferred stock or common stock. Our board of directors is also expressly authorized to increase or decrease the number of shares of any series subsequent to the issue of that series, but not below the number of shares of such series then outstanding. The issuance of preferred stock may have the effect of decreasing the market price of our common stockoccur, and may adversely affect the voting power of holders of our common stock and reduce the likelihood that holders of our common stock will receive dividend payments and payments upon liquidation. In addition, the issuance of preferred stock could have the effect of delaying, deferringdelay or preventingprevent a change in control of our controlCompany or other corporate action.
The particular terms of each class or series of preferred stock that we may offer under this prospectus,changes in our management, including redemption privileges, liquidation preferences, voting rights, dividend rights or conversion rights, will be more fully described in the applicable prospectus supplement relating to the preferred stock offered thereby. The applicable prospectus supplement will specify the terms of the class or series of preferred stock we may offer, including:provisions that:
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DESCRIPTION OF WARRANTSThese provisions, alone or together, could discourage a party from acquiring, or make it more difficult for a party to acquire, control of us, or delay or prevent hostile takeovers and changes in control or changes in our management.
General
We may offer warrants for the purchase of shares of common stock, shares of preferred stock or the other securities registered hereby, in one or more series. We may issue the warrants by themselves or together with common stock, preferred stock, other warrants or units, 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 termsIn addition, Section 1203 of the particular seriesCalifornia General Corporation Law (“CGCL”) includes provisions that may have the effect of warrants we may offer before the issuancedeterring hostile takeovers or delaying or preventing changes in control or management 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 holderCompany. First, if an “interested party” makes an offer to purchase the numbershares of securities at the exercise price set forth in,some 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,Company’s shareholders or makes a new warrantwritten proposal for approval of a merger, exchange or other reorganization or for a new warrant certificate, as applicable, will be issued for the remaining amountsale 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 or preferred stock, holders of the warrants will not have any of the rights of holders of common stock or preferred stock purchasable upon exercise, including 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.
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.
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, warrants or other units, 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 Capital Stock” and “Description of Warrants” will apply to each unit and to any common stock, preferred stock 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.
This prospectus also relates to the offer and resale by the Selling Shareholders of up to 25,539,309 Resale Shares, consisting of (i) 22,775,656 shares of our common stock held by the Selling Shareholders, and (ii) 2,763,653 shares of our common stock issuable upon exercise of the Warrants. The Selling Shareholders may sell any, all or none of the Resale Shares included in and offered by this prospectus. These securities were purchased in various private transactions as summarized below. The summaries do not purport to be complete and, in the case of agreements summarized below, are qualified by reference to the full text of the respective agreements.
BioTime Registration Rights Agreement
In November 2015, we effected a 1-for-2 reverse stock split of our common stock, or the Reverse Stock Split. All share numbers reflected below have been adjusted to give effect to the Reverse Stock Split.
In August 2011, we entered into a Stock Purchase Agreement, or the 2011 Agreement, with BioTime, Inc., or BioTime, pursuant to which we sold and issued 3,500,000 shares of our common stock to BioTime. In May 2015, we entered into a Stock Subscription Agreement, or the May 2015 Agreement, with BioTime pursuant to which we sold and issued 1,500,000 shares of our common stock to BioTime. In September 2015, we entered into another Stock Subscription Agreement, or the September 2015 Agreement, with BioTime pursuant to which we sold and issued 2,710,857 shares of our common stock to BioTime. We refer to the 2011 Agreement, the May 2015 Agreement and the September 2015 Agreement collectively as the Purchase Agreements. In connection with the Purchase Agreements, we entered into a Registration Rights Agreement, first executed in October 2009 and amended in August 2011, May 2015 and November 2015, with BioTime and certain other parties. Pursuant to the Registration Rights Agreement, we agreed, upon the occurrence of certain events and subject to certain conditions, to file with the SEC a registration statement covering the shares of our common stock sold and issued to these parties pursuant to the Purchase Agreements for resale under the Securities Act, and to use commercially reasonable efforts to keep such registration statement effective until the earlier of (i) the completion of the distribution or distributions being made pursuant to such registration statement, or (ii) such time as these parties are eligible to sell such shares of common stock under Rule 144 under the Securities Act without application of the manner of sale and volume limitations thereunder.
We also issued an aggregate of 11,708,094 shares of our common stock to BioTime in private transactions in October 2009, July 2011 and November 2015 and we have agreed to include all outstanding shares of our common stock issued in those transactions in the registration statement of which this prospectus forms a part. In December 2015, BioTime distributed 4,744,707 shares of the 19,418,951 shares of our common stock it then held to its shareholders. The resulting 14,674,244 shares of our common stock held by BioTime constitute the Resale Shares being registered hereby on behalf of BioTime.
August 2016 Private Placement
In August 2016, we sold an aggregate of 3,246,153 immediately separable units, with each unit consisting of one share of our common stock and one warrant to purchase one share of our common stock, at a price of $3.25 per unit. The warrants have an exercise price of $3.25 per share of common stock, became exercisable in October 2016, and may be exercised until October 2021. We refer to this transaction as the “August 2016 Private Placement.” We agreed to register the resale of the securities contained in the units, subject to certain conditions. All of the Resale Shares being registered hereby on behalf of The Bailey 1995 Family Trust and Seamark Fund, L.P. represent shares of our common stock issuable upon exercise of Warrants contained in the units they purchased in the August 2016 Private Placement. The Resale Shares being registered hereby on behalf of Broadwood Partners L.P., or Broadwood, include 1,538,461 shares of our common stock and 573,461 shares of our common stock issuable upon exercise of Warrants contained in the units Broadwood purchased in the August 2016 Private Placement.
February 2017 Warrant Exercise Agreements
In February 2017, we entered into warrant exercise agreements with the following Selling Shareholders, pursuant to which each agreed to cash-exercise warrants acquired in the August 2016 Private Placement and we issued to them new Warrants, in each case immediately exercisable and expiring in February 2022, as follows:
Under the warrant exercise agreement with Broadwood, we agreed to file a registration statement covering the shares issuable upon exercise of the new Warrants, subject to certain conditions. We further agreed to use commercially reasonable efforts to keep such registration statement effective until the earlier of the date that all of shares covered by the registration statement have been sold or can be sold publicly without restriction or limitation under Rule 144, or five years from the date of the warrant exercise agreement. The Resale Shares being registered hereby on behalf of Broadwood include the 212,500 shares of our common stock issuable upon exercise of its new Warrant. We have also agreed to include the shares of our common stock issuable upon exercise of the new Warrants issued to ALB Investments, Phylis Esposito and The Thunen Family Trust in the registration statement of which this prospectus forms a part, which representsubstantially all of the Resale Shares being registered hereby on behalfCompany’s assets, an affirmative opinion must be delivered in writing to the board or each shareholder, as the case may be, as to the fairness of the consideration to be received by the shareholders prior to completing the transaction. California law considers a person to be an “interested party” if the person directly or indirectly controls the Company, if the person is directly or indirectly controlled by one of the Company’s officers or directors, or if the person is an entity in which one of the Company’s officers or directors holds a material financial interest. If after receiving an offer from such holders.an “interested party” the Company or its shareholders receives a subsequent offer from a neutral third party within the time prescribed by Section 1203, then the shareholders must be notified of this offer and afforded the opportunity to withdraw their tender or consent to the “interested party” offer. Section 1203 could make it more difficult for a third party to acquire a majority of the Company’s outstanding capital stock, by discouraging a hostile bid, or delaying, preventing or deterring a merger, acquisition or tender offer in which the Company’s shareholders could receive a premium for their shares, or effect a proxy contest for control of the Company or other changes in its management.
July 2017 Warrant Exercise Agreements
In July 2017, we entered into additional warrant exercise agreements with the following Selling Shareholders, pursuant to which each agreed to cash-exercise warrants acquired in the August 2016 Private Placement and we issued to them new Warrants, in each case immediately exercisable and expiring in July 2019 or July 2022, as follows:
Under the warrant exercise agreement with Broadwood, we agreed to file a registration statement covering the shares issuable upon exercise of the new Warrants, subject to certain conditions. We further agreed to use commercially reasonable efforts to keep such registration statement effective until the earlier of the date that all of shares covered by the registration statement have been sold or can be sold publicly without restriction or limitation under Rule 144, or five years from the date of the warrant exercise agreement. The Resale Shares being registered hereby on behalf of Broadwood include the 270,000 shares of our common stock issuable upon exercise of its new Warrant. We have also agreed to include the shares of our common stock issuable upon exercise of the new Warrants issued to Anthony Low-Beer, Patrick Lin and GKarfunkel in the registration statement of which this prospectus forms a part, which represent all of the Resale Shares being registered hereby on behalf of such holders.
Securities Purchase Agreements
In March 2018, we entered into a securities purchase agreement pursuant to which we sold and issued an aggregate of 3,968,254 shares of our common stock to Broadwood in a private placement. Pursuant to the securities purchase agreement, we also agreed to register the resale of the shares of our common stock sold in the private placement, subject to certain conditions. We also agreed to pay liquidated damages if we did not file the registration statement in a timely manner. Because the registration statement was not filed as required by the securities purchase agreement, during 2019 we paid $300,000 to Broadwood. The Resale Shares being registered hereby on behalf of Broadwood include these 3,968,254 shares of our common stock.
Material Relationships
Prior to February 2017, we were a majority-owned, consolidated subsidiary of BioTime. Since February 2017, the shares of our common stock held by BioTime have accounted for less than 50% of our total common stock outstanding and we ceased being a consolidated subsidiary of BioTime.
In October 2009, we entered into a Shared Facilities and Services Agreement, or Shared Facilities Agreement, with BioTime, pursuant to which we have use of laboratory and office space at BioTime’s facility in Alameda, California. In addition, pursuant to the Shared Facilities Agreement, BioTime has provided, and continues to provide, administrative support to us on a reimbursable basis, and we presently rely on the provision of certain management and administrative services, including patent prosecution, certain legal services, accounting, financial management, and controls over financial accounting and reporting, by BioTime. Further, since our inception, we have partly financed our operations from loans borrowed from BioTime, of which no amount was outstanding as of March 31, 2019, and sales of the common shares of BioTime, of which we held 353,264 shares as marketable equity securities as of March 31, 2019. The chairman of our board of directors currently serves as a member of the board of directors of BioTime, and the chairman of the board of directors of BioTime currently serves as a member of our board of directors.
Neal Bradsher, who may be deemed a beneficial owner of the Resale Shares directly owned by Broadwood, is a member of the board of directors of BioTime.
Don Bailey, who is co-trustee of The Bailey 1995 Family Trust, served as a member of our board of directors from August 2016 until November 2017, and currently serves on the board of directors of BioTime.
Except as described above, and except for the beneficial ownership of the shares of our common stock described in the table below and the Selling Shareholders’ participation in the transactions associated therewith, none of the Selling Shareholders has held any position or office or had any other material relationship with us or any of our predecessors or affiliates within the past three years.
Selling Shareholders Table
The following table and accompanying footnotes, which were prepared based on information furnished to us by or on behalf of each of the Selling Shareholders and information filed with the SEC, sets forth information regarding the beneficial ownership of shares of our common stock owned by the Selling Shareholders as of May 17, 2019. Beneficial ownership is determined in accordance with rules of the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under the rules of the SEC, a person is deemed to be a “beneficial owner” of a security if that person has or shares “voting power,” which includes the power to vote or to direct the voting of such security, or “investment power,” which includes the power to dispose of or to direct the disposition of such security. A person is also deemed to be a beneficial owner of a security if that person has the right to acquire beneficial ownership of such security within 60 days.
The percentage of shares beneficially owned is based on 51,972,830 shares of our common stock issued and outstanding as of May 17, 2019. Shares of our common stock that a Selling Shareholder has the right to acquire within 60 days of the filing date of this prospectus are deemed outstanding for purposes of computing the percentage ownership of such Selling Shareholder’s holdings, but are not deemed outstanding for purposes of computing the percentage ownership of any other Selling Shareholder. The number of shares and percentage of our outstanding common stock to be beneficially owned after completion of this offering assumes that the Selling Shareholders will sell all the Resale Shares offered hereby. The Selling Shareholders may offer all, some, or none of the Resale Shares. The Selling Shareholders may have sold, transferred, otherwise disposed of or purchased, or may sell, transfer, otherwise dispose of or purchase, at any time and from time to time, shares of our common stock in transactions exempt from the registration requirements of the Securities Act, or in the open market after the date on which they provided the information set forth in the table below. Unless otherwise indicated, and subject to applicable community property laws, we believe that all persons named in the table below have sole voting and investment power with respect to all shares beneficially owned by them.
Information concerning the Selling Shareholders may change over time. Any changed information will be set forth in amendments to the registration statement of which this prospectus forms a part or in supplements to this prospectus, if and when necessary or as otherwise required by law.
| Shares Beneficially Owned Prior to Offering | Shares Being Offered | Shares Beneficially Owned After Offering | ||||||||||||||||||
| Selling Shareholder | Number | Percent | Number | Number | Percent | |||||||||||||||
| BioTime, Inc.(1) | 14,674,244 | 28.23 | % | 14,674,244 | — | — | ||||||||||||||
| Broadwood Partners, L.P.(2) | 9,157,373 | 17.27 | 9,157,373 | — | — | |||||||||||||||
| ALB Private Investments LLC(3) | 117,482 | * | 100,000 | 17,482 | * | |||||||||||||||
| Phylis Esposito(4) | 50,000 | * | 50,000 | — | — | |||||||||||||||
| The Thunen Family Trust(5) | 50,000 | * | 50,000 | — | — | |||||||||||||||
| Anthony Low-Beer(6) | 150,000 | * | 150,000 | — | — | |||||||||||||||
| Patrick Lin(7) | 191,256 | * | 76,923 | 114,333 | * | |||||||||||||||
| GKarfunkel Family LLC(8) | 3,000,000 | 5.66 | 1,000,000 | 2,000,000 | 3.78 | |||||||||||||||
| The Bailey 1995 Family Trust(9) | 250,769 | * | 230,769 | 20,000 | * | |||||||||||||||
| Seamark Fund, L.P.(10) | 150,247 | * | 50,000 | 100,247 | * | |||||||||||||||
* Less than 1%.
PLAN OF DISTRIBUTION FOR THE COMPANY
WeThe selling shareholders may, sell our securities directly to one or more investors. We may also sell our securities through agents designated from time to time, sell, transfer, or tootherwise dispose of any or through underwritersall of their Resale Shares on any stock exchange, market, or dealers. The applicable prospectus supplement and anytrading facility on which the shares are traded, or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related free writing prospectus will describe the terms of the offering of the securities, including, to the extent applicable:
We may distribute our 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 discountssale, 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 underwriters of the securities offered by that prospectus supplement.at negotiated prices.
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 of 1934, as amended, or 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 aThe 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.
PLAN OF DISTRIBUTION FOR THE SELLING SHAREHOLDERS
Each Selling Shareholder and any of their pledgees, donees, transferees, assignees and successors-in-interest may, from time to time, sell any or all of their Resale Shares on the NYSE American or any other securities exchange, market or trading facility on which shares of our common stock are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling Shareholdershareholders may use any one or more of the following methods when selling Resale Shares:disposing of shares or interests therein:
| ● | disposition on any national securities exchange on which our common stock may be listed at the time of the sale; |
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| ● | disposition in the over-the-counter markets; | |
| ● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; | |
| ● | ||
| block trades in which the broker-dealer will attempt to sell the | ||
| ● | 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; | |
| ● | ||
| ● | writing or settlement of options | |
| ● | disposition in one or more underwritten offerings in a best efforts basis or firm commitment basis; | |
| ● | broker-dealers may agree with the selling shareholders to sell a specified number of such shares at a stipulated price per share; | |
| ● | under Rule 144, Rule 144A or Regulation S under the Securities Act, if available, rather than under this prospectus; | |
| ● | a combination of any such methods of sale; or | |
| ● | any other method permitted |
We do not know of specific arrangements by the selling shareholders for the sale of their Resale Shares. The Selling Shareholders may also sellaggregate proceeds to the selling shareholders from any sale of the Resale Shares under Rule 144 underoffered by them will be the Securities Act, if available, rather than pursuant to the registration statementpurchase price of which this prospectus forms a part.
Broker-dealers engaged by the Selling Shareholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling Shareholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in excess of a customary brokerage commission, and in the case of a principal transaction a markup or markdown, in each case in compliance with Rule 2121 of the Financial Industry Regulatory Authority.
In connection with any permitted short sale, loan, pledge, option, derivative or hedging transaction, the Selling Shareholders may enter into agreements with broker-dealers or other financial institution that in turn engage in short sales of our common stock in the course of hedging the positions they assume. If any Resale Shares are delivered to a broker-dealer or other financial institution in connection with any such transaction, the broker-dealer or other financial institution may resell the Resale Shares pursuant to this prospectus (as supplementedless discounts or amended to reflect such transaction, including,commissions, if necessary, updates to the list ofany. The selling shareholders reserve the right to includeaccept and, together with their respective agents from time to time, to reject, in whole or in part, any proposed purchase of the Resale Shares to be made directly or through agents. We will not receive any of the proceeds from any such broker-dealer or financial institution).sale.
The Selling Shareholders may also transfer and donate the Resale Shares in other circumstances in which case the transferees, donees, pledgees or other successors-in-interest will be the selling beneficial owners for purposes of this prospectus.
The Selling Shareholdersshareholders and any brokers, dealersbroker-dealers or agents that are involvedparticipate in sellingthe sale of the Resale Shares may be deemed to be “underwriters” within the meaning of Section 2(11) of the Securities Act in connection with such sales. In such event,Act. Any discounts, commissions, concessions or profit they earn on any commissions received by such brokers, dealers or agents and any profit on the resale of any Resale Shares purchased by themthe shares may be deemed to be underwriting compensationdiscounts and commissions under the Securities Act. Each Selling Shareholder has advised us that it does not haveThe selling shareholders are subject to the prospectus delivery requirements of the Securities Act.
The selling shareholders will bear all commissions and discounts, if any, written or oral agreement, understanding or arrangement, directly or indirectly, with any broker, dealer, agent or other person regardingattributable to the sale of the Resale Shares. There are no underwriters or coordinating brokers acting in connection with the proposed saledisposition of the Resale Shares, by the Selling Shareholders.
Because the Selling Shareholders may be deemed to be “underwriters” within the meaning of the Securities Act, they may be subject to the requirements of the Securities Act to deliver this prospectus to each purchaser at or prior to the time of the sale. We have informed the Selling Shareholders of this requirement, and we will make copies of this prospectus available to them.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the Resale Shares may not simultaneously engage in market making activities with respect to our common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the Selling Shareholders 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 shares of our common stock by the Selling Shareholders or any other person.
interests therein. We will pay certainbear all costs, expenses, and fees and expenses incurred by us incident toin connection with the registration of the Resale Shares, including SEC filing fees, fees and expenses of compliance with securities laws, and various related expenses. The Selling Shareholders are responsible for allShares. We will not be paying any underwriting discounts sellingor commissions and other costs related to their offer and sale of the Resale Shares.in this offering.
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Unless otherwise indicated inThe validity of the applicable prospectus supplement, the validityissuance of the securities offered hereby will be passed upon for us by DLA PiperSheppard, Mullin, Richter & Hampton LLP, (US), Seattle, Washington.San Diego, California. Additional legal matters may be passed upon for us or any underwriters, dealers, or agents by counsel that we will name in the applicable prospectus supplement.
The balance sheets of OncoCyteOncocyte Corporation as of December 31, 20182020 and 2017,2019, and the related statements of operations, comprehensive loss, stockholders’shareholders’ equity, and cash flows for each of the two years in the period ended December 31, 2018,2020, have been incorporated by reference into this prospectus and the registration statement in reliance on the report of OUM & Co. LLP, an independent registered public accounting firm, upon the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION INCORPORATED
We are a reporting company and file annual, quarterly and current reports, proxy statements and other information with the SEC. We have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the sale, from time to time, of the Resale Shares held by the selling shareholders named in this prospectus and any applicable prospectus supplement.
This prospectus does not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For further information with respect to us and the securities being offered under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement.
You may read and copy the registration statement, as well as our reports, proxy statements and other information, on the SEC’s website at http://www.sec.gov. You can also obtain copies of materials we file with the SEC from our website found at www.oncocyte.com. Information on our website does not constitute a part of, nor is it incorporated in any way, into this prospectus. and should not be relied upon in connection with making an investment decision.
INCORPORATION OF DOCUMENTS BY REFERENCE
We are “incorporatingThe SEC allows us to “incorporate by reference” certain documents we file with the SEC,information into this prospectus, which means that we can disclose important information to you by referring you to those documents.another document filed separately with the SEC. The information in the documents incorporated by reference is considered to be part ofinto this prospectus. Statements contained inprospectus contain important information that you should read about us.
The following documents that we file with the SEC and that are incorporated by reference into this prospectus will automatically update and supersede information contained in thisany applicable 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 (other than current reports on Form 8-K, or portions thereof, that are not deemed “filed” pursuant to the General Instructions of Form 8-K):supplement:
| ● | ||
| ● | ||
| ● | ||
| ● | ||
| ● | the description of our common stock |
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All documents subsequently filed by us (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that we fileare related to such items unless such Form 8-K expressly provides to the contrary) with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, (excludingincluding those portions of such documents furnished to, rather than filed with, the SEC) (i)made after the date of the initial filing date of the registration statement of which this prospectus forms a part and prior to the effectiveness of such registration statement, and (ii) after the date of this prospectus and prior tountil we file a post-effective amendment that indicates the termination of the offering shall beof the Resale Shares made by this prospectus are deemed to be incorporated by reference into this prospectus. Such future filings will become a part of this prospectus from the date of filing of therespective dates that such documents unless we specifically provide otherwise. Information that we file with the SEC will automatically update and may replace information previouslyare filed with the SEC. To
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that any informationsuch statement contained herein or in any current reportother subsequently filed document, which is also incorporated or deemed to be incorporated herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
The documents incorporated by reference into this prospectus are also available on Form 8-Kour corporate website at www.oncocyte.com under the heading “Investors.” Information contained on, or that can be accessed through, our website is not part of this prospectus, and you should not consider information on our website to be part of this prospectus or any exhibit thereto, was or is furnished to, rather than filed with the SEC, such information or exhibit isprospectus supplement unless specifically not incorporated herein by reference.
Upon written or oral request made to us at the address or telephone number below, we We will at no cost to the requester, provide to each person, including any beneficial owner, to whom thisa prospectus is delivered a copy of any or all of the information that has beendocuments incorporated by reference intoin this prospectus (other than an exhibit to a filing, unless that exhibit is specifically incorporatedand any prospectus supplement free of charge upon request for such documents in writing or by reference into that filing), but not delivered with this prospectus:
OncoCyte Corporation
1010 Atlantic Avenue, Suite 102
Alameda, California 94501
(510) 775-0515
WHERE YOU CAN FIND MORE INFORMATIONtelephone at the following address:
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 this prospectus, 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.Oncocyte Corporation
15 Cushing
Irvine, California 92618
Attn: Mitchell Levine
Telephone: (949) 409-7600
Email: mlevine@oncocyte.com
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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. Our SEC filings are available to the public over the Internet at the SEC’s website at www.sec.gov. In addition, we provide free access to these materials through our website, www.oncocyte.com, as soon as reasonably practicable after they are filed with or furnished to the SEC.
$100,000,0009,436,465 SHARES OF COMMON STOCK
Common Stock
Preferred Stock
Warrants
Units
25,539,309Shares
Common Stock
Offered by the Selling Shareholders
PROSPECTUS
, 2019
We have not authorized any dealer, salesperson, or other person to give you written information other than this prospectus or to make representations as to matters not stated in this prospectus. You must not rely on unauthorized information. This prospectus is not an offer to sell these securities or our solicitation of your offer to buy these securities in any jurisdiction where that would not be permitted or legal. Neither the delivery of this prospectus nor any sales made hereunder after the date of this prospectus shall create an implication that the information contained herein or the affairs of the Company have not changed since the date of this prospectus.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.Other Expenses of Issuance and Distribution
| Item 14. | Other Expenses of Issuance and Distribution. |
The following table sets forth an estimate of the fees and expenses of OncoCyte Corporation, or the Registrant, in connection withrelating to the issuance and distribution of the securities being registered hereby, other than underwriting discounts and commissions.commissions, all of which shall be borne by the selling shareholders. All of the amounts shown are estimatessuch fees and expenses, except for the SEC registration fee. The estimates do not include expenses related to offerings of particular securities. Each prospectus supplement describing an offering of securities will reflect the estimated expenses related to the offering of securities under that prospectus supplement.Registration Fee, are estimated:
| Item | Amount ($) | |||
| SEC registration fee | $ | 25,474 | ||
| Legal fees and expenses | 25,000 | |||
| Accounting fees and expenses | 15,000 | |||
| Printing fees and expenses | 5,000 | |||
| Miscellaneous | 4,526 | |||
| Total | $ | 75,000 | ||
Item 15.Indemnification of Directors and Officers
| SEC registration fee | $ | 5,580 | ||
| Transfer agent’s fees and expenses | $ | * | ||
| Legal fees and expenses | $ | * | ||
| Printing fees and expenses | $ | * | ||
| Accounting fees and expenses | $ | * | ||
| Miscellaneous fees and expenses | $ | * | ||
| Total | $ | * |
| * | These fees and expenses depend on the securities offered and number of issuances and, accordingly, cannot be estimated at this time and will be reflected in the applicable prospectus supplement. |
| Item 15. | Indemnification of Officers and Directors. |
Section 317 of the California Corporations Code permits indemnification of directors, officers, employees and other agents of corporations under certain conditions andCGCL 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 must 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 the 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 must also indemnify any agentperson 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 that agentperson 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, asits 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 ordinarily prudent personaction brought by or in the right of the corporation for breach of a like position would use under similar circumstances;director’s duties to the corporation and its shareholders, provided, however that no indemnificationthey 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 made: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).
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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 officer, notwithstanding that the officer is also a director or that his or her actions, if negligent or improper, have been ratified by the directors.
To
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.
The 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, or in defense of any claim, issue or matter therein, the agent shall 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 expenses on behalf of an agent in any circumstance where it appears that it would be inconsistent with:
Article VI ofBylaws also permit the Registrant’s bylaws further obligates the Registrant, upon and in the event of a determination by the Registrant’s board of directors to do so,Company to purchase and maintain insurance on behalf of any agent of the Registrant against any liability asserted against or incurred by the agent in suchthat capacity or arising out of the agent’s status as such whether or not the RegistrantCompany would have the power to indemnify the agent against that liability under the provisions of Article VISection 317 of the Registrant’s bylaws. The Registrant has obtainedCGCL.
Further, the Company maintains directors’ and officers’ liability insurance as well as other insurance for its directors, officers, employees and agents with respect to certain liabilities, including liabilities arising under the Securities Act.coverage.
The foregoing summaries do not purport to be complete, and 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, as applicableis qualified in its entirety by reference to such documents.
Item 16.Exhibits
The following exhibits are included or incorporated by reference in this registration statement:
| Item 16. | Exhibits. |
| a) | Exhibits. |
Numbers | Exhibit Description | |
| 3.1* | Articles of Incorporation with all amendments | |
| 3.2 | Amended and | |
| 5.1* | Opinion of Sheppard, Mullin, Richter & Hampton LLP as to the legality of the securities being registered | |
| 23.1* | Consent of OUM & Co., LLP | |
| 23.2* | Consent of Sheppard, Mullin, Richter & Hampton LLP (included in Exhibit 5.1) | |
| 24.1* | Power of Attorney (included on signature pages to the registration statement). |
| * | Filed herewith. |
| Item 17. | Undertakings. |
The 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 the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the 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 price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and | ||
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in 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) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic 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 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.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) each prospectus filed pursuant to Rule 424(b)(3) as part of a registration statement as of the date the filed prospectus was deemed part of and included in the registration statement.
(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 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 a 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.
(5) 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 Section 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.
(6) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person 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 Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 June 6, 2019.July 14, 2021.
| By: | /s/ | ||
Mitchell Levine Chief Financial Officer and (Principal Financial Officer) | |||
KNOW BY ALL MENPERSONS BY THESE PRESENTS, that each personindividual whose signature appears below constitutes and appoints William Annett or Mitchell Levine, as hishis/her true and lawful attorney-in-fact and agent with full power of substitution and resubstitution,re-substitution, for himhim/her and in hishis/her name, place and stead, in any and all capacities to sign any andor all amendments hereto,(including, without limitation, post-effective amendments) to this Registration Statement, any related Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and any or all pre- or post-effective amendments thereto, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said 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 about the premises, as fully tofor all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or hisany substitute or substitutes for him, may lawfully do or cause to be done by virtue thereof.hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statementRegistration Statement has been signed by the following persons in the capacities and onas of the dates indicated.indicated
| Title | Date | |||
| /s/ | ||||
| /s/ Mitchell Levine | Chief Financial Officer | |||
| Mitchell Levine | (Principal Financial Officer) | |||
| /s/ Li Yu | Vice President and Controller | July 14, 2021 | ||
| Li Yu | (Principal Accounting Officer) | |||
| /s/ | Director | July 14, 2021 | ||
| Andrew Arno | ||||
| Director | July 14, 2021 | |||
| Melinda Griffith | ||||
| Director | July 14, 2021 | |||
| Alfred D. Kingsley | ||||
| /s/ Andrew Last | Director | July 14, 2021 | ||
| Andrew Last | ||||
| /s/ Cavan Redmond | Director | July 14, 2021 | ||
| Cavan Redmond | ||||
| /s/ | Director | |||
| II-4 |